Planning legal updates from Shoosmiths LLPhttps://www.shoosmiths.co.uk/rss/5691.aspxPlanning legal updates from Shoosmiths LLPen-GBShoosmithshttps://www.shoosmiths.co.uk/-/media/shoosmiths/shoosmiths-rss-image.jpg?h=144&w=144Planning legal updates from Shoosmiths LLPhttps://www.shoosmiths.co.uk/rss/5691.aspx60{DD840637-8BE3-479C-B6D4-1A0A8F46B9D6}https://www.shoosmiths.co.uk/news/press-releases/planning-expert-mitchell-is-the-latest-partner-to-join-shoosmiths.aspxPlanning expert Mitchell is the latest partner to join ShoosmithsFraser Mitchell, a highly respected planning lawyer has been appointed to national law firm Shoosmiths as a partner within its expanding Edinburgh based real estate team.Wed, 14 Aug 2019 00:00:00 +0100<![CDATA[Rachel Howard]]><![CDATA[Fraser Mitchell, a highly respected planning lawyer has been appointed to national law firm Shoosmiths as a partner within its expanding Edinburgh based real estate team.]]>{BD7324FC-458D-4925-9F0D-A58BB2FF683F}https://www.shoosmiths.co.uk/news/press-releases/shoosmiths-hires-leading-planning-partner.aspxShoosmiths hires leading planning partnerUK law firm Shoosmiths has recruited a leading planning and development partner to boost its real estate team.Wed, 14 Aug 2019 00:00:00 +0100<![CDATA[Rachel Howard]]><![CDATA[UK law firm Shoosmiths has recruited a leading planning and development partner to boost its real estate team.]]>{F914B529-8C33-4895-A0C0-21DBE0480B56}https://www.shoosmiths.co.uk/client-resources/legal-updates/nitrate-pollution-concerns-halt-housebuilding.aspxNitrate pollution concerns halt housebuildingFive local authorities in the Solent area have put a hold on determining planning applications for new housing as a result of advice from Natural England about nitrate pollution.Mon, 15 Jul 2019 00:00:00 +0100<![CDATA[Angus Evers Matthew Price ]]><![CDATA[Five local authorities in the Solent area have put a hold on determining planning applications for new housing as a result of advice from Natural England about nitrate pollution.]]>{D1AAEE4A-ECB9-475B-A569-923B0E7B8A2B}https://www.shoosmiths.co.uk/client-resources/legal-updates/hypothetical-arguments-and-the-planning-court.aspxHypothetical arguments and the Planning CourtTwo recent Planning Court decisions have re-examined the extent to which the Planning Court is prepared to become involved in claims which raise purely “academic” arguments.Fri, 12 Jul 2019 00:00:00 +0100<![CDATA[Tim Willis ]]><![CDATA[Two recent Planning Court decisions have re-examined the extent to which the Planning Court is prepared to become involved in claims which raise purely “academic” arguments.]]>{36DE6CED-B915-4B3B-99F5-A209CB776926}https://www.shoosmiths.co.uk/client-resources/legal-updates/interpreting-the-term-detailed-planning-permission-in-an-overage-agreement.aspxInterpreting the term ‘detailed planning permission’ in an overage agreementA recent case has highlighted the risk of using a term in an overage agreement that does not have a precise technical meaning in planning law.Tue, 11 Jun 2019 00:00:00 +0100<![CDATA[Michael Callaghan and Karen howard]]><![CDATA[A recent case has highlighted the risk of using a term in an overage agreement that does not have a precise technical meaning in planning law.]]>{D5CBA3AE-D5DA-446C-A3C9-94B349266199}https://www.shoosmiths.co.uk/client-resources/legal-updates/conservation-covenants-the-government-consultation.aspxConservation covenants – the government consultationThe government is consulting on Law Commission proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.Thu, 21 Mar 2019 00:00:00 Z<![CDATA[Angus Evers Michael Callaghan]]><![CDATA[The government is consulting on Law Commission proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.]]>{4D90F1B8-734E-4A85-BAB9-F92CAB9FB02D}https://www.shoosmiths.co.uk/client-resources/legal-updates/property-owner-prosecuted-spread-japanese-knotweed.aspxProperty owner prosecuted for spread of Japanese knotweedBristol City Council has used its powers under the Anti-Social Behaviour, Crime and Policing Act 2014 to prosecute a property owner for allowing the spread of invasive plant species Japanese knotweed.Wed, 16 Jan 2019 00:00:00 Z<![CDATA[Angus Evers and Lucy Shepherd]]><![CDATA[Bristol City Council has used its powers under the Anti-Social Behaviour, Crime and Policing Act 2014 to prosecute a property owner for allowing the spread of invasive plant species Japanese knotweed.]]>{2767B542-E751-459A-B85F-BFEA770B4556}https://www.shoosmiths.co.uk/client-resources/legal-updates/pre-commencement-condition-reforms-2018-14650.aspxPre-commencement Condition Reforms 2018Planning conditions play an important role in addressing or mitigating the impacts of development and well worded conditions which satisfy the necessary statutory tests can assist with the timely delivery of development schemes.Mon, 01 Oct 2018 00:00:00 +0100<![CDATA[Emma Cartledge-Taylor Tim Willis ]]><![CDATA[Planning conditions play an important role in addressing or mitigating the impacts of development and well worded conditions which satisfy the necessary statutory tests can assist with the timely delivery of development schemes.]]>{67E8F7A9-0E5B-4292-A7AD-D015CFCCD76E}https://www.shoosmiths.co.uk/client-resources/legal-updates/first-high-court-ruling-town-village-greens-trigger-event-14503.aspxFirst High Court ruling on town and village greens trigger event The case of Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin) has seen the High Court considering what constitutes a trigger event for the purposes of Section 15C and Schedule 1A of the Commons Act 2006.Thu, 02 Aug 2018 00:00:00 +0100<![CDATA[Kara Roberts ]]><![CDATA[The case of Cooper Estates Strategic Land Limited v Wiltshire Council [2018] EWHC 1704 (Admin) has seen the High Court considering what constitutes a trigger event for the purposes of Section 15C and Schedule 1A of the Commons Act 2006.]]>{14376791-7D83-4106-98D5-3F875F1E8546}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-climate-change-14469.aspxNPPF - Climate Change NPPF 2 has landed and with it are changes to the government's stance on climate change. What remains to be seen is how these changes will tie in with the government's 25 Year Plan for the Environment, especially in relation to environmental net gains. Interestingly, the government has amended the environmental role within the NPPF's aim of achieving sustainable development to include the objective of 'making effective use of land', a new chapter within the NPPF 2 that supports the promotion by the local planning authority of the effective use of land for development where appropriate and with regard to the environment. The NPPF 2 now includes the requirement for strategic policies to make sufficient provision for a number of strategic priorities (some of which are new and some which have been carried over from the first NPPF). Among these is the requirement to make sufficient provision for planning measures to address climate change mitigation and adaptation, rather than NPPF 1's vague requirement that strategic policies should deliver climate change mitigation and adaptation with no mention of the mechanism by which that was to be achieved. This then leads to another change - the definition of climate change adaptation has been amended to be far-reaching, lacking the specificity detailed in NPPF 1. This new definition encompasses adjustments made to 'natural and/or human systems in response to actual or anticipated impacts of climate change to mitigate harm or exploit beneficial opportunities'. It doesn't detail what those impacts are limited to, which could mean that developers will have to consider unprecedented environmental impacts of climate change. However, paragraph 149 is prescriptive in detailing the effects which will need to be mitigated and adapted to in accordance with the Climate Change Act 2008. This creates something of a conflict and it will be interesting to see whether local planning authorities will attempt to rely on the open-ended definition of climate change adaptation in refusing or granting planning permission. In Chapter 14 of NPPF 2 (previously chapter 10 of NPPF 1) there has been a move toward supporting appropriate measures to safeguard the resilience of communities and infrastructure to climate change impacts. In NPPF 1, providing resilience was mentioned; however, it was not specific as to what the climate change impacts the resilience was to protect against. Footnote 18 (paragraph 98) of NPPF 1, chapter 10, has been removed and footnote 49 (paragraph 154 (b)) of NPPF 2, chapter 14, is not a substitute, but rather an altogether new guidance on wind turbines. Proposed wind turbine developments (not including the repowering of existing wind turbines) will not be considered acceptable, unless the development is situated in an area identified as suitable for such a development within the development plan. Further to that, following consultation, it needs to be demonstrated that any identified planning impacts (which will be identified by the local community, rather than any statutory or advisory body) are fully addressed and the backing of the proposal by the local community has been obtained. This footnote will no doubt, in practice, prevent any new onshore wind turbine developments. All in all, there are no ground-breaking departures from NPPF 1 with regard to climate change, save the effective ban on new onshore wind turbine developments. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Fri, 27 Jul 2018 00:00:00 +0100<![CDATA[Angus Evers ]]><![CDATA[ NPPF 2 has landed and with it are changes to the government's stance on climate change. What remains to be seen is how these changes will tie in with the government's 25 Year Plan for the Environment, especially in relation to environmental net gains. Interestingly, the government has amended the environmental role within the NPPF's aim of achieving sustainable development to include the objective of 'making effective use of land', a new chapter within the NPPF 2 that supports the promotion by the local planning authority of the effective use of land for development where appropriate and with regard to the environment. The NPPF 2 now includes the requirement for strategic policies to make sufficient provision for a number of strategic priorities (some of which are new and some which have been carried over from the first NPPF). Among these is the requirement to make sufficient provision for planning measures to address climate change mitigation and adaptation, rather than NPPF 1's vague requirement that strategic policies should deliver climate change mitigation and adaptation with no mention of the mechanism by which that was to be achieved. This then leads to another change - the definition of climate change adaptation has been amended to be far-reaching, lacking the specificity detailed in NPPF 1. This new definition encompasses adjustments made to 'natural and/or human systems in response to actual or anticipated impacts of climate change to mitigate harm or exploit beneficial opportunities'. It doesn't detail what those impacts are limited to, which could mean that developers will have to consider unprecedented environmental impacts of climate change. However, paragraph 149 is prescriptive in detailing the effects which will need to be mitigated and adapted to in accordance with the Climate Change Act 2008. This creates something of a conflict and it will be interesting to see whether local planning authorities will attempt to rely on the open-ended definition of climate change adaptation in refusing or granting planning permission. In Chapter 14 of NPPF 2 (previously chapter 10 of NPPF 1) there has been a move toward supporting appropriate measures to safeguard the resilience of communities and infrastructure to climate change impacts. In NPPF 1, providing resilience was mentioned; however, it was not specific as to what the climate change impacts the resilience was to protect against. Footnote 18 (paragraph 98) of NPPF 1, chapter 10, has been removed and footnote 49 (paragraph 154 (b)) of NPPF 2, chapter 14, is not a substitute, but rather an altogether new guidance on wind turbines. Proposed wind turbine developments (not including the repowering of existing wind turbines) will not be considered acceptable, unless the development is situated in an area identified as suitable for such a development within the development plan. Further to that, following consultation, it needs to be demonstrated that any identified planning impacts (which will be identified by the local community, rather than any statutory or advisory body) are fully addressed and the backing of the proposal by the local community has been obtained. This footnote will no doubt, in practice, prevent any new onshore wind turbine developments. All in all, there are no ground-breaking departures from NPPF 1 with regard to climate change, save the effective ban on new onshore wind turbine developments. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{E68057D7-712D-4E9F-BE65-CF6D9548392D}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-heritage-assets-14439.aspxNPPF - Heritage Assets Provisions in NPPF 2 published on the 24 July 2018, in relation to the conservation and enhancement of the historic environment are not a significant departure from the original NPPF issued in 2012. They do, however, contain a number of matters of importance, over and above the cosmetic changes to paragraph numbers from the original NPPF 1 text, which are always a source of frustration for practitioners. Small but important changes are made to Paragraph 193, for example. This replaces the original NPPF 1 Paragraph 132 and expands the policy wording to incorporate judicial guidance on its application and interpretation. Therefore, when considering the impact of development on the significance of a designated heritage asset, it is made clear that "great weight should be given to the asset's conservation." In these circumstances, the guidance makes it clear that the more important the asset, the greater the weight should be. This is all irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm. This reiterates and makes clear the position that when considering the impact of development, great weight should be given to the asset's conservation regardless of the degree of harm that will be involved. In this regard, the importance of the asset (and therefore the weight to be attributed to it), will be a likely source of debate. It is therefore helpful that Paragraph 187 introduces a requirement for local planning authorities to maintain or have access to a historic environment record. These should contain up-to-date evidence about the historic environment in their area which can be used to assess the significance of heritage assets and the contribution they make to the environment. Helpfully, Paragraph 188 further states that these records and information should be publically available, which will assist and improve access to that inform and ensure transparency in the planning process by reference to a centralised record of the assets importance. This can be utilised and referred to when a planning application is being submitted. Paragraph 198 of the NPPF 2 states that local planning authorities should not permit the loss of the whole, or part, of a heritage asset, without taking all reasonable steps to ensure the new development will proceed after the loss has occurred. In practice, local planning authorities have sought to impose planning conditions or Section 106 obligations to achieve this aim, but the addition of this paragraph (while reaffirming the government's focus on the protection of heritage assets), does provide support for that approach where planning permission is granted - which leads to the loss of an heritage asset. In short, there is an expectation that the development permitted will be completed so as to ultimately justify the loss of the heritage asset. Linked to the above, Paragraph 199 states that local planning authorities should require developers to record and show understanding of the significance of any heritage assets (in whole or part) to be lost in a manner proportionate to their importance and to make this evidence publically available. Finally, in terms of decision making, it is noteworthy that where the new Paragraph 11 presumption in favour of sustainable development is engaged, impact on designated heritage assets (and other heritage assets of archaeological interest), may still provide a "clear reason" for refusing permission in any event. They are one of the now "closed group" of assets of particular importance which could potentially override the presumption. Conclusion The amendments detailed above confirm the government's continued, firm stance on the protection of heritage assets and their importance. The amendments work alongside the stronger protection for the environment detailed elsewhere in the NPPF 2 and update the guidance to take account of judicial authority. The NPPF 2 also seeks to assist in the sharing of important information about the historic environment, in a way that will hopefully result in more transparency and improvements to the planning process and decision making. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 26 Jul 2018 00:00:00 +0100<![CDATA[Emma Cartledge-Taylor ]]><![CDATA[ Provisions in NPPF 2 published on the 24 July 2018, in relation to the conservation and enhancement of the historic environment are not a significant departure from the original NPPF issued in 2012. They do, however, contain a number of matters of importance, over and above the cosmetic changes to paragraph numbers from the original NPPF 1 text, which are always a source of frustration for practitioners. Small but important changes are made to Paragraph 193, for example. This replaces the original NPPF 1 Paragraph 132 and expands the policy wording to incorporate judicial guidance on its application and interpretation. Therefore, when considering the impact of development on the significance of a designated heritage asset, it is made clear that "great weight should be given to the asset's conservation." In these circumstances, the guidance makes it clear that the more important the asset, the greater the weight should be. This is all irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm. This reiterates and makes clear the position that when considering the impact of development, great weight should be given to the asset's conservation regardless of the degree of harm that will be involved. In this regard, the importance of the asset (and therefore the weight to be attributed to it), will be a likely source of debate. It is therefore helpful that Paragraph 187 introduces a requirement for local planning authorities to maintain or have access to a historic environment record. These should contain up-to-date evidence about the historic environment in their area which can be used to assess the significance of heritage assets and the contribution they make to the environment. Helpfully, Paragraph 188 further states that these records and information should be publically available, which will assist and improve access to that inform and ensure transparency in the planning process by reference to a centralised record of the assets importance. This can be utilised and referred to when a planning application is being submitted. Paragraph 198 of the NPPF 2 states that local planning authorities should not permit the loss of the whole, or part, of a heritage asset, without taking all reasonable steps to ensure the new development will proceed after the loss has occurred. In practice, local planning authorities have sought to impose planning conditions or Section 106 obligations to achieve this aim, but the addition of this paragraph (while reaffirming the government's focus on the protection of heritage assets), does provide support for that approach where planning permission is granted - which leads to the loss of an heritage asset. In short, there is an expectation that the development permitted will be completed so as to ultimately justify the loss of the heritage asset. Linked to the above, Paragraph 199 states that local planning authorities should require developers to record and show understanding of the significance of any heritage assets (in whole or part) to be lost in a manner proportionate to their importance and to make this evidence publically available. Finally, in terms of decision making, it is noteworthy that where the new Paragraph 11 presumption in favour of sustainable development is engaged, impact on designated heritage assets (and other heritage assets of archaeological interest), may still provide a "clear reason" for refusing permission in any event. They are one of the now "closed group" of assets of particular importance which could potentially override the presumption. Conclusion The amendments detailed above confirm the government's continued, firm stance on the protection of heritage assets and their importance. The amendments work alongside the stronger protection for the environment detailed elsewhere in the NPPF 2 and update the guidance to take account of judicial authority. The NPPF 2 also seeks to assist in the sharing of important information about the historic environment, in a way that will hopefully result in more transparency and improvements to the planning process and decision making. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{A6C6D68A-A5F8-4384-A734-974AA687A23E}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-the-agent-of-change-principle-14454.aspxNPPF - The Agent of Change Principle This briefing note considers the inclusion, in the revised NPPF, of a specific reference to the agent of change principle, the principle by which a person or business introducing a new land use is responsible for managing the impact of that change. Specific mention of the agent of change principle was contained in the annex to the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP). The paper proposed an amendment to the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. It was considered that this proposal would mitigate the risk arising from the imposition of restrictions or the possible closure of existing businesses due to noise and other complaints from the occupiers of new developments. In a statement made by the Ministry of Housing, Communities and Local Government on 18 January 2018, it was confirmed that the NPPF would be clarified to include detailed reference to the agent of change principle. The revised NPPF implements the HWP proposal. In particular, paragraph 182 (contained in chapter 15: conserving and enhancing the natural environment) states that planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. The paragraph goes on to confirm that where an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or agent of change) should be required to secure suitable mitigation before the development has been completed. The agent of change principle, with the publication of the revised NPPF, is now a feature of national planning policy and a material consideration to be taken account of by decision-makers in the determination of planning applications. However, elements of the agent of change principle have been reflected in policy for some time - paragraph 123 of the previous version of the NPPF advised that planning policies and decisions should recognise that existing businesses should not have unreasonable restrictions placed on them because of changes to nearby land uses; and the Planning Practice Guidance indicates that consideration should be given to the potential effects of locating new residential development close to existing businesses that cause noise. Therefore, the inclusion of an explicit reference to the agent of change principle in the revised NPPF amounts to a change of emphasis, rather than the introduction of an alien and entirely novel concept. There is a clear tension between the agent of change principle and other policy objectives, such as housing supply - new development could be hindered if too much emphasis is placed on the principle, thereby giving rise to a detrimental impact on the local economy; and the technical evidence submitted in support of noise-sensitive developments may become the focus of more intense scrutiny by local planning authorities. Furthermore, the use of conditions and/or planning obligations to mitigate noise impacts and other nuisances could increase, which itself may result in knock on effects for scheme viability and the ability for other policy objectives, such as affordable housing targets, to be met. In parallel with the publication of the revised NPPF, there does appear to be a growing impetus to afford greater protection to music venues and the night-time economy by putting the agent of change principle on a more formal and clear footing. By way of example, at the turn of the year, the House of Commons gave its approval to the Planning (Agent of Change) Bill, a Private Member's Bill moved by John Spellar MP, which is designed to protect existing music venues from closure or crippling cost arising from the development of new residential properties in their vicinity, especially over questions of noise. The bill had its first reading in the Commons on 10 January 2018 and is expected to have its second reading on 26 October 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 26 Jul 2018 00:00:00 +0100<![CDATA[Sam Grange ]]><![CDATA[ This briefing note considers the inclusion, in the revised NPPF, of a specific reference to the agent of change principle, the principle by which a person or business introducing a new land use is responsible for managing the impact of that change. Specific mention of the agent of change principle was contained in the annex to the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP). The paper proposed an amendment to the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. It was considered that this proposal would mitigate the risk arising from the imposition of restrictions or the possible closure of existing businesses due to noise and other complaints from the occupiers of new developments. In a statement made by the Ministry of Housing, Communities and Local Government on 18 January 2018, it was confirmed that the NPPF would be clarified to include detailed reference to the agent of change principle. The revised NPPF implements the HWP proposal. In particular, paragraph 182 (contained in chapter 15: conserving and enhancing the natural environment) states that planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. The paragraph goes on to confirm that where an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or agent of change) should be required to secure suitable mitigation before the development has been completed. The agent of change principle, with the publication of the revised NPPF, is now a feature of national planning policy and a material consideration to be taken account of by decision-makers in the determination of planning applications. However, elements of the agent of change principle have been reflected in policy for some time - paragraph 123 of the previous version of the NPPF advised that planning policies and decisions should recognise that existing businesses should not have unreasonable restrictions placed on them because of changes to nearby land uses; and the Planning Practice Guidance indicates that consideration should be given to the potential effects of locating new residential development close to existing businesses that cause noise. Therefore, the inclusion of an explicit reference to the agent of change principle in the revised NPPF amounts to a change of emphasis, rather than the introduction of an alien and entirely novel concept. There is a clear tension between the agent of change principle and other policy objectives, such as housing supply - new development could be hindered if too much emphasis is placed on the principle, thereby giving rise to a detrimental impact on the local economy; and the technical evidence submitted in support of noise-sensitive developments may become the focus of more intense scrutiny by local planning authorities. Furthermore, the use of conditions and/or planning obligations to mitigate noise impacts and other nuisances could increase, which itself may result in knock on effects for scheme viability and the ability for other policy objectives, such as affordable housing targets, to be met. In parallel with the publication of the revised NPPF, there does appear to be a growing impetus to afford greater protection to music venues and the night-time economy by putting the agent of change principle on a more formal and clear footing. By way of example, at the turn of the year, the House of Commons gave its approval to the Planning (Agent of Change) Bill, a Private Member's Bill moved by John Spellar MP, which is designed to protect existing music venues from closure or crippling cost arising from the development of new residential properties in their vicinity, especially over questions of noise. The bill had its first reading in the Commons on 10 January 2018 and is expected to have its second reading on 26 October 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{CF7838CE-D4D9-43B9-95B1-1DF2EB0226EA}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-green-belt-14457.aspxNPPF - Green Belt In a change from the wording set out in the draft version of the document, local authorities should alter green belt boundaries only where exceptional circumstances are 'fully evidenced and justified', the new NPPF says. In order to establish that exceptional circumstances exist, local planning authorities should be able to demonstrate that it has examined fully "all other reasonable options for meeting its identified need for development" (paragraph 137). This would include looking at whether the strategy makes "as much use as possible" of brownfield land and underutilised land, as well as whether the density of any development coming forward within the area has been optimised in line with the requirements of Part 11 of the NPPF. The new policy would also require proposals for green belt releases to have been "informed by discussions with neighbouring authorities" in terms of whether housing could be accommodated elsewhere. This would place a more formal requirement on authorities to demonstrate co-operation through the preparation of statements of common ground. It remains to be seen in terms of whether this is realistic or workable, given the inherent sensitivities of such discussions between neighbouring authorities (particularly those with great swathes of green belt within their area). Plan making bodies should also set out ways in which the impact of removing land from the green belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining green belt land. From a developer's perspective this could mean that additional cost is incurred in terms of providing any improvement works on land which will remain within the green belt, in order to facilitate the release of green belt required for development. The remainder of the provisions regarding protection of the green belt remain largely as set out in the consultation draft, confirming the government's ongoing commitment to robustly protecting land within the green belt. Indeed, the omissions are as perhaps of as much interest in terms of the green belt provisions. The NPPF proposes no change to the five long-standing purposes of including land in green belt, signalling a reluctance to modernise thinking in this regard. Equally, there is no amendment to the rule that inappropriate development is by definition harmful to the green belt and should only be approved in very special circumstances. There is, however, confirmation that cemeteries, burial grounds and allotments should not be regarded as inappropriate development. The new NPPF allows for residential development that contributes to local affordable housing on brownfield green belt sites, so long as it does not cause "substantial harm" to green belt openness. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 26 Jul 2018 00:00:00 +0100<![CDATA[Anna Cartledge ]]><![CDATA[ In a change from the wording set out in the draft version of the document, local authorities should alter green belt boundaries only where exceptional circumstances are 'fully evidenced and justified', the new NPPF says. In order to establish that exceptional circumstances exist, local planning authorities should be able to demonstrate that it has examined fully "all other reasonable options for meeting its identified need for development" (paragraph 137). This would include looking at whether the strategy makes "as much use as possible" of brownfield land and underutilised land, as well as whether the density of any development coming forward within the area has been optimised in line with the requirements of Part 11 of the NPPF. The new policy would also require proposals for green belt releases to have been "informed by discussions with neighbouring authorities" in terms of whether housing could be accommodated elsewhere. This would place a more formal requirement on authorities to demonstrate co-operation through the preparation of statements of common ground. It remains to be seen in terms of whether this is realistic or workable, given the inherent sensitivities of such discussions between neighbouring authorities (particularly those with great swathes of green belt within their area). Plan making bodies should also set out ways in which the impact of removing land from the green belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining green belt land. From a developer's perspective this could mean that additional cost is incurred in terms of providing any improvement works on land which will remain within the green belt, in order to facilitate the release of green belt required for development. The remainder of the provisions regarding protection of the green belt remain largely as set out in the consultation draft, confirming the government's ongoing commitment to robustly protecting land within the green belt. Indeed, the omissions are as perhaps of as much interest in terms of the green belt provisions. The NPPF proposes no change to the five long-standing purposes of including land in green belt, signalling a reluctance to modernise thinking in this regard. Equally, there is no amendment to the rule that inappropriate development is by definition harmful to the green belt and should only be approved in very special circumstances. There is, however, confirmation that cemeteries, burial grounds and allotments should not be regarded as inappropriate development. The new NPPF allows for residential development that contributes to local affordable housing on brownfield green belt sites, so long as it does not cause "substantial harm" to green belt openness. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{099C1636-531C-470F-B2F0-44F9CF960284}https://www.shoosmiths.co.uk/client-resources/legal-updates/joint-working-and-statements-of-common-ground-14451.aspxNPPF - Joint Working and Statements of Common Ground This briefing note considers the introduction into the NPPF of a requirement for local planning authorities to prepare a statement of common ground in order to meet three primary objectives. These are (a) increasing certainty and transparency, earlier on in the plan making process, on where effective co-operation is and is not happening; (b) encouraging all local planning authorities to co-operate effectively and seek agreement on strategic cross-boundary issues; and (c) helping local planning authorities demonstrate evidence of co-operation by setting clearer and more consistent expectations as to how co-operation in plan making should be approached and documented. Paragraph 179 of the previous version of the NPPF required local planning authorities to work collaboratively to ensure that strategic priorities across local boundaries were properly coordinated, and to address development requirements which could not be wholly met within a single local planning authority's administrative boundary. Furthermore, the duty to co-operate, introduced through the Localism Act 2011, is designed to reflect the reality that strategic cross-boundary planning matters can only be effectively tackled when local planning authorities work together. Compliance with the duty is tested at the examination stage of the plan-making process. While there are a number of instances of local planning authorities co-operating effectively to plan for the strategic needs of their wider area, including its housing requirement, there are also examples of where the existing framework for co-operation, based upon the duty to co-operate, has proved to be less effective, with a number of local plans being withdrawn at the examination stage where compliance with the duty to co-operate has not been demonstrated. Against this background, the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP), particularly paragraphs 1.9 and A.13, set out a plan for more effective joint working where planning issues go beyond individual authority boundaries through the preparation of a statement of common ground. The revised NPPF implements the HWP's plan and also reflects (in Chapter 3: Plan-making) a number of the proposals foreshadowed in the government's 'Planning for the right homes in the right places: consultation proposals' (published in September 2017). In particular, paragraph 27 of the revised NPPF states that, in order to demonstrate effective and on-going joint working, strategic policy-making authorities should prepare and maintain one or more statements of common ground, documenting the cross-boundary matters being addressed and progress in cooperating to address these. Paragraph 35 goes on to set out the soundness tests against which local plans are assessed at the examination stage, and proposes a strengthening of the positively prepared and effective soundness tests so that local plans are (a) informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated; and (b) based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by a statement of common ground. Co-operation between local planning authorities will continue to be tested by virtue of the statutory duty to co-operate when a local plan is submitted for examination. However, the statement of common ground should provide the primary evidence of compliance with the duty to co-operate and establish a clear link between that and the assessment of whether a local plan can be considered sound. As regards to guidance on the preparation of statements of common ground, the revised NPPF directs the reader to "the approach set out in national planning guidance" (paragraph 27). We are not aware of the Planning Practice Guidance having been updated at this stage. However, it is anticipated that the approach to be advocated will be based upon the government's September 2017 consultation proposals 'Planning for the right homes in the right places'. Matters which we expect to be included are (among others) the identification of key cross-boundary strategic planning issues, including housing and infrastructure matters, as well as the geographical area over which to produce the statement of common ground, plus the need to keep statement of common ground regularly updated during the plan-making process to reflect emerging agreements between participating authorities and an individual authority's plan-making progress. Despite having consulted previously upon transitional arrangements for the amended positively prepared and effective soundness tests, and for the introduction of statements of common ground more generally, the government has previously confirmed that it will not be taking these transitional arrangements forward. The reason given was that the introduction of the statement of common ground as a way of evidencing joint working and the duty to cooperate is not a significant change in practice. Therefore, the change does not demand nor necessitate a transitional period. While the objectives behind the introduction of a requirement for statements of common ground are commendable and have merit, the extent to which these statements will assist in the examination process will depend upon their effectiveness as both a road-map and an up to date record for cross-boundary co-operation on strategic planning matters. For the resource-strapped local planning authority with limited finances, the requirement for a statement of common ground, particularly in the absence of transitional arrangements, may amount to little more than an unwelcome distraction and an additional burden to be shouldered. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 26 Jul 2018 00:00:00 +0100<![CDATA[Sam Grange ]]><![CDATA[ This briefing note considers the introduction into the NPPF of a requirement for local planning authorities to prepare a statement of common ground in order to meet three primary objectives. These are (a) increasing certainty and transparency, earlier on in the plan making process, on where effective co-operation is and is not happening; (b) encouraging all local planning authorities to co-operate effectively and seek agreement on strategic cross-boundary issues; and (c) helping local planning authorities demonstrate evidence of co-operation by setting clearer and more consistent expectations as to how co-operation in plan making should be approached and documented. Paragraph 179 of the previous version of the NPPF required local planning authorities to work collaboratively to ensure that strategic priorities across local boundaries were properly coordinated, and to address development requirements which could not be wholly met within a single local planning authority's administrative boundary. Furthermore, the duty to co-operate, introduced through the Localism Act 2011, is designed to reflect the reality that strategic cross-boundary planning matters can only be effectively tackled when local planning authorities work together. Compliance with the duty is tested at the examination stage of the plan-making process. While there are a number of instances of local planning authorities co-operating effectively to plan for the strategic needs of their wider area, including its housing requirement, there are also examples of where the existing framework for co-operation, based upon the duty to co-operate, has proved to be less effective, with a number of local plans being withdrawn at the examination stage where compliance with the duty to co-operate has not been demonstrated. Against this background, the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP), particularly paragraphs 1.9 and A.13, set out a plan for more effective joint working where planning issues go beyond individual authority boundaries through the preparation of a statement of common ground. The revised NPPF implements the HWP's plan and also reflects (in Chapter 3: Plan-making) a number of the proposals foreshadowed in the government's 'Planning for the right homes in the right places: consultation proposals' (published in September 2017). In particular, paragraph 27 of the revised NPPF states that, in order to demonstrate effective and on-going joint working, strategic policy-making authorities should prepare and maintain one or more statements of common ground, documenting the cross-boundary matters being addressed and progress in cooperating to address these. Paragraph 35 goes on to set out the soundness tests against which local plans are assessed at the examination stage, and proposes a strengthening of the positively prepared and effective soundness tests so that local plans are (a) informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated; and (b) based on effective joint working on cross-boundary strategic matters that have been dealt with rather than deferred, as evidenced by a statement of common ground. Co-operation between local planning authorities will continue to be tested by virtue of the statutory duty to co-operate when a local plan is submitted for examination. However, the statement of common ground should provide the primary evidence of compliance with the duty to co-operate and establish a clear link between that and the assessment of whether a local plan can be considered sound. As regards to guidance on the preparation of statements of common ground, the revised NPPF directs the reader to "the approach set out in national planning guidance" (paragraph 27). We are not aware of the Planning Practice Guidance having been updated at this stage. However, it is anticipated that the approach to be advocated will be based upon the government's September 2017 consultation proposals 'Planning for the right homes in the right places'. Matters which we expect to be included are (among others) the identification of key cross-boundary strategic planning issues, including housing and infrastructure matters, as well as the geographical area over which to produce the statement of common ground, plus the need to keep statement of common ground regularly updated during the plan-making process to reflect emerging agreements between participating authorities and an individual authority's plan-making progress. Despite having consulted previously upon transitional arrangements for the amended positively prepared and effective soundness tests, and for the introduction of statements of common ground more generally, the government has previously confirmed that it will not be taking these transitional arrangements forward. The reason given was that the introduction of the statement of common ground as a way of evidencing joint working and the duty to cooperate is not a significant change in practice. Therefore, the change does not demand nor necessitate a transitional period. While the objectives behind the introduction of a requirement for statements of common ground are commendable and have merit, the extent to which these statements will assist in the examination process will depend upon their effectiveness as both a road-map and an up to date record for cross-boundary co-operation on strategic planning matters. For the resource-strapped local planning authority with limited finances, the requirement for a statement of common ground, particularly in the absence of transitional arrangements, may amount to little more than an unwelcome distraction and an additional burden to be shouldered. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{05295A23-31D4-40C8-A1F7-9F4C531BF97B}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-starter-homes-14419.aspxNPPF - Starter Homes On 24 July 2018, the Government published long awaited revised National Planning Policy Framework (NPPF). One significant revision is the addition of 'Starter Homes' and 'Discounted Market Sales Housing' to the definition of Affordable Housing within Annex 2 of the NPPF as follows: Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute and any such secondary legislation at the time of plan-preparation or decision-making. Where secondary legislation has the effect of limiting a household's eligibility to purchase a starter home to those with a particular maximum level of household income, those restrictions should be used. Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households. The definition of Starter Homes has been slightly amended from that published for consultation with specific reference to maximum income for eligible households now removed to allow for this to be set by the secondary legislation required to being these provisions introduced by the Housing and Planning Act 2016 into force. Following consultation responses the definition of 'Affordable Housing for Rent' has been slightly amended to "make it clear that 'social rent' and 'affordable rent' products fall within the scope of 'affordable housing for rent'". The consultation response also gave rise to an amendment to the definition of 'Other Affordable Routes for Home Ownership', to bring this in line with other definitions in the NPPF, to make it clear that these products include other low cost home for sale that should be made available at a price equivalent to at least 20% below market value, although how this differs from discounted market sales housing is unclear. The amendment to the definition of Affordable Housing broadens the potential tenure mix of affordable housing units to be provided within a proposed development with Starter Homes and Discounted Market Sales Housing capable of being counted towards on-site provision of Affordable Housing. Discounted Market Sales Housing are often offered in lieu of the 'traditional' on site Affordable Housing i.e. social rent, affordable rented and shared ownership where a contract with a registered provider cannot be secured due to lack of local interest or market for such units or, in the case of shared ownership dwellings, the restrictions in the Housing (Right to Enfranchisement (Designated Protected Areas) (England) Order 2009, may make such dwellings unappealing to registered providers and/or lenders. The broader definition will assist local planning authorities in delivery against their Affordable Housing targets however consideration will need to be given as to how occupation of such units is to be monitored by local planning authorities. The introduction of Discounted Market Sales Housing to be provided at 20% below local market value may potentially hinder the aim of speeding up the planning application process as agreement will need to be reached between the developer and the local planning authority of the appropriate measure for the local market. From a developer's perspective the expansion of the definition of Affordable Housing offers greater flexibility in respect of the composition of the Affordable Housing to be provided and may overcome difficulties in relation to viability, particularly for smaller scale developments. The difficulty will however remain whether such tenures are acceptable to local planning authorities as Affordable Housing in their administrative area and whether such tenures will meet the local need. It may be that we see Starter Homes and Discounted Market Sales Housing being offered on appeal where Affordable Housing and/or viability are in dispute. The Government has previously mooted the possibility of requiring up to 20% of dwellings within a development to be provided as Starter Homes but no such requirement is included in the NPPF2. The requirement for major housing developments to provide a minimum of 10% of homes as Affordable Housing (subject to exemptions including specialist accommodation such as retirement living and rural exemption sites) remains in paragraph 64 of the NPPF2. Landowners, promoters and developers should, however, bear in mind potential impacts of this change, as Affordable Housing defined by reference to NPPF is often used in a range of transactional documents including promotion agreements, options, conditional contracts and overage agreements, as well as heads of terms when negotiating deal terms. If the NPPF is used in the definition of Affordable Housing in transactional papers, and that definition includes replacement guidance without any carve outs or conditions, the unintended consequence may be that Affordable Housing provision will going forward include Discounted Market Sale Housing because of NPPF2. This may be fine for many purposes, but the use of Affordable Housing definitions in documents should be tracked through carefully, to ensure that minimum price payment obligations still work, planning and promotion objectives are not adversely affected, and overage payments will catch the correct number of dwellings. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Jul 2018 00:00:00 +0100<![CDATA[Kara Roberts David Perry ]]><![CDATA[ On 24 July 2018, the Government published long awaited revised National Planning Policy Framework (NPPF). One significant revision is the addition of 'Starter Homes' and 'Discounted Market Sales Housing' to the definition of Affordable Housing within Annex 2 of the NPPF as follows: Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute and any such secondary legislation at the time of plan-preparation or decision-making. Where secondary legislation has the effect of limiting a household's eligibility to purchase a starter home to those with a particular maximum level of household income, those restrictions should be used. Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households. The definition of Starter Homes has been slightly amended from that published for consultation with specific reference to maximum income for eligible households now removed to allow for this to be set by the secondary legislation required to being these provisions introduced by the Housing and Planning Act 2016 into force. Following consultation responses the definition of 'Affordable Housing for Rent' has been slightly amended to "make it clear that 'social rent' and 'affordable rent' products fall within the scope of 'affordable housing for rent'". The consultation response also gave rise to an amendment to the definition of 'Other Affordable Routes for Home Ownership', to bring this in line with other definitions in the NPPF, to make it clear that these products include other low cost home for sale that should be made available at a price equivalent to at least 20% below market value, although how this differs from discounted market sales housing is unclear. The amendment to the definition of Affordable Housing broadens the potential tenure mix of affordable housing units to be provided within a proposed development with Starter Homes and Discounted Market Sales Housing capable of being counted towards on-site provision of Affordable Housing. Discounted Market Sales Housing are often offered in lieu of the 'traditional' on site Affordable Housing i.e. social rent, affordable rented and shared ownership where a contract with a registered provider cannot be secured due to lack of local interest or market for such units or, in the case of shared ownership dwellings, the restrictions in the Housing (Right to Enfranchisement (Designated Protected Areas) (England) Order 2009, may make such dwellings unappealing to registered providers and/or lenders. The broader definition will assist local planning authorities in delivery against their Affordable Housing targets however consideration will need to be given as to how occupation of such units is to be monitored by local planning authorities. The introduction of Discounted Market Sales Housing to be provided at 20% below local market value may potentially hinder the aim of speeding up the planning application process as agreement will need to be reached between the developer and the local planning authority of the appropriate measure for the local market. From a developer's perspective the expansion of the definition of Affordable Housing offers greater flexibility in respect of the composition of the Affordable Housing to be provided and may overcome difficulties in relation to viability, particularly for smaller scale developments. The difficulty will however remain whether such tenures are acceptable to local planning authorities as Affordable Housing in their administrative area and whether such tenures will meet the local need. It may be that we see Starter Homes and Discounted Market Sales Housing being offered on appeal where Affordable Housing and/or viability are in dispute. The Government has previously mooted the possibility of requiring up to 20% of dwellings within a development to be provided as Starter Homes but no such requirement is included in the NPPF2. The requirement for major housing developments to provide a minimum of 10% of homes as Affordable Housing (subject to exemptions including specialist accommodation such as retirement living and rural exemption sites) remains in paragraph 64 of the NPPF2. Landowners, promoters and developers should, however, bear in mind potential impacts of this change, as Affordable Housing defined by reference to NPPF is often used in a range of transactional documents including promotion agreements, options, conditional contracts and overage agreements, as well as heads of terms when negotiating deal terms. If the NPPF is used in the definition of Affordable Housing in transactional papers, and that definition includes replacement guidance without any carve outs or conditions, the unintended consequence may be that Affordable Housing provision will going forward include Discounted Market Sale Housing because of NPPF2. This may be fine for many purposes, but the use of Affordable Housing definitions in documents should be tracked through carefully, to ensure that minimum price payment obligations still work, planning and promotion objectives are not adversely affected, and overage payments will catch the correct number of dwellings. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{3BC5EF57-CFEB-4DCF-ACBD-1971C7C7D6AA}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-density-14405.aspxNPPF - Density The new NPPF introduces a new Chapter 11 - "Making effective use of land". This chapter builds on some of the core principles in the original NPPF with regard to effective use and sets a range of requirements that policies should include in order to promote the effective use of land. It is clearly linked to finding more ways to increase the delivery of homes through brownfield land and it states that - "Strategic policies should set out a clear strategy for accommodating objectively assessed needs, in a way that makes as much use as possible of previously developed or brownfield' land." This is consistent with the stated aims of increasing housing and the protection of the green belt and means that local authorities have to demonstrate that all of the land in their area has been properly assessed when their policies are considered. The chapter includes the expected proposal to support higher density housing where it is required. In addition, the chapter sets some other positive policy requirements to support the principle of making effective use of land in both policy making and decision taking. They include - encouraging multiple benefits from both urban and rural land, taking opportunities to achieve net environmental gains (this includes specific examples of new habitat creation and the improvement of public access to the countryside); recognising what roles undeveloped land could play; giving substantial weight to the value of using brownfield land; promote and support the development of under-utilised land and buildings (especially to meet identified housing need where land supply is constrained); supporting opportunities to use the airspace above existing residential and commercial buildings; being responsive to changes in demand for land by keeping land availability and allocation under review and where applications for allocated uses are not realistically coming forward land should be reallocated for more deliverable uses and applications for alternative uses should be supported where they will contribute to meeting unmet need. The NPPF requires local planning authorities to take a pro-active role in identifying and bringing forward land suitable for development needs (such as sites in public ownership and sites on brownfield registers). The NPPF actively encourages authorities to take a role in facilitating land assembly and to use CPO powers to help meet development needs. Authorities are required now to take a positive approach to applications for alternative land uses where it would help to meet identified needs, in particular proposals should be supported that: use retail and employment land for homes in areas of high housing demand, as long as there is an acceptable impact on town centres; and make more effective use of land already providing community services (as long as it maintains or improves service quality). While these requirements are applicable to both brownfield and greenfield land, it seems that there is a real focus on ensuring that all brownfield space is considered as the first option to minimise the need for greenfield development. Achieving appropriate densities The new NPPF includes a changed approach to determining appropriate densities for new development. The original NPPF required authorities to set out their own approach to housing density to reflect local circumstances. The new NPPF requires that policies and decisions should support development that makes efficient use of land, taking into account issues such as: identified housing need; market conditions and viability; availability and capacity of infrastructure; the desirability of maintaining existing character and setting compared to regeneration/change; and the importance of well-designed attractive and healthy places. It is identified that where there is either an existing or anticipated shortage of housing both policies and decisions should avoid homes being built in low densities to ensure optimal use of land. Where there is such a shortage: plans should contain policies to optimise the use of land in the area, including minimum densities for areas where there is good public transport. It is expected that these will seek an uplift on existing densities in those areas, unless there are strong reasons otherwise. These policies will be tested robustly at examination; use of minimum density standards should be considered for other areas, with the possibility of a range of standards linked to the accessibility of the areas covered by the plan; applications should be refused where they fail to make efficient use of land taking into account the policies in the framework and when considering applications for housing, authorities should take a flexible approach in applying policies or guidance relating to daylight and sunlight. These requirements place great importance of first identifying the objectively assessed need in the area and the wider goal of achieving optimum efficiency of land use. Development at higher densities will inevitably provide less on site infrastructure and therefore place greater pressure on existing infrastructure. It seems that the assessment of existing capacity and finding solutions to make these developments feasible will be critical if higher density schemes are to be successful. The effective use of planning obligations and CIL will be essential although higher density schemes could in theory create the higher revenues needed to provide and/or improve the necessary infrastructure. As with the policy requirements being introduced to ensure effective use of land, the proposals for greater density could also been seen as further protection mechanism for the green belt. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Jul 2018 00:00:00 +0100<![CDATA[Paul Weeks ]]><![CDATA[ The new NPPF introduces a new Chapter 11 - "Making effective use of land". This chapter builds on some of the core principles in the original NPPF with regard to effective use and sets a range of requirements that policies should include in order to promote the effective use of land. It is clearly linked to finding more ways to increase the delivery of homes through brownfield land and it states that - "Strategic policies should set out a clear strategy for accommodating objectively assessed needs, in a way that makes as much use as possible of previously developed or brownfield' land." This is consistent with the stated aims of increasing housing and the protection of the green belt and means that local authorities have to demonstrate that all of the land in their area has been properly assessed when their policies are considered. The chapter includes the expected proposal to support higher density housing where it is required. In addition, the chapter sets some other positive policy requirements to support the principle of making effective use of land in both policy making and decision taking. They include - encouraging multiple benefits from both urban and rural land, taking opportunities to achieve net environmental gains (this includes specific examples of new habitat creation and the improvement of public access to the countryside); recognising what roles undeveloped land could play; giving substantial weight to the value of using brownfield land; promote and support the development of under-utilised land and buildings (especially to meet identified housing need where land supply is constrained); supporting opportunities to use the airspace above existing residential and commercial buildings; being responsive to changes in demand for land by keeping land availability and allocation under review and where applications for allocated uses are not realistically coming forward land should be reallocated for more deliverable uses and applications for alternative uses should be supported where they will contribute to meeting unmet need. The NPPF requires local planning authorities to take a pro-active role in identifying and bringing forward land suitable for development needs (such as sites in public ownership and sites on brownfield registers). The NPPF actively encourages authorities to take a role in facilitating land assembly and to use CPO powers to help meet development needs. Authorities are required now to take a positive approach to applications for alternative land uses where it would help to meet identified needs, in particular proposals should be supported that: use retail and employment land for homes in areas of high housing demand, as long as there is an acceptable impact on town centres; and make more effective use of land already providing community services (as long as it maintains or improves service quality). While these requirements are applicable to both brownfield and greenfield land, it seems that there is a real focus on ensuring that all brownfield space is considered as the first option to minimise the need for greenfield development. Achieving appropriate densities The new NPPF includes a changed approach to determining appropriate densities for new development. The original NPPF required authorities to set out their own approach to housing density to reflect local circumstances. The new NPPF requires that policies and decisions should support development that makes efficient use of land, taking into account issues such as: identified housing need; market conditions and viability; availability and capacity of infrastructure; the desirability of maintaining existing character and setting compared to regeneration/change; and the importance of well-designed attractive and healthy places. It is identified that where there is either an existing or anticipated shortage of housing both policies and decisions should avoid homes being built in low densities to ensure optimal use of land. Where there is such a shortage: plans should contain policies to optimise the use of land in the area, including minimum densities for areas where there is good public transport. It is expected that these will seek an uplift on existing densities in those areas, unless there are strong reasons otherwise. These policies will be tested robustly at examination; use of minimum density standards should be considered for other areas, with the possibility of a range of standards linked to the accessibility of the areas covered by the plan; applications should be refused where they fail to make efficient use of land taking into account the policies in the framework and when considering applications for housing, authorities should take a flexible approach in applying policies or guidance relating to daylight and sunlight. These requirements place great importance of first identifying the objectively assessed need in the area and the wider goal of achieving optimum efficiency of land use. Development at higher densities will inevitably provide less on site infrastructure and therefore place greater pressure on existing infrastructure. It seems that the assessment of existing capacity and finding solutions to make these developments feasible will be critical if higher density schemes are to be successful. The effective use of planning obligations and CIL will be essential although higher density schemes could in theory create the higher revenues needed to provide and/or improve the necessary infrastructure. As with the policy requirements being introduced to ensure effective use of land, the proposals for greater density could also been seen as further protection mechanism for the green belt. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{796EFC87-BE23-4CB0-8454-006D824ED672}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-upward-extensions-14408.aspxNPPF - Upward Extensions The new NPPF provides backing for upward extensions. This is designed to make use of the airspace above existing buildings where there is scope to extend them. An earlier consultation on this proposal for London contemplated the possibility of permitted development rights or local development orders but the preferred approach was identified as planning policies to support this type of development and it has been crystallised in the NPPF. This change to the NPPF is therefore not a permitted development right and should not be seen as an automatic yes. It does however give support in principle to extensions above existing residential and commercial premises for new homes. This is something that could be applied for anyway so it does not introduce a new concept, but it does confirm that such proposals for new homes should be supported as long as the extension would not reach beyond the adjoining roof lines and would be in keeping with the overall street scene and are well designed and safe access can be achieved. This approach is likely to be welcomed by the industry in principle as it supports the type of innovative approach that is required to find space for additional housing in highly developed areas. There will however be complications with these proposals with the most obvious one being viability. Some sites will undoubtedly be more complicated than others and this could lead to viability issues. How local authorities will treat these sites with regard to CIL and planning obligations will undoubtedly therefore have an impact on their deliverability. As with the other policies promoting higher density development, the impact of this type of development on existing infrastructure will need to be considered carefully to ensure that acceptable developments can take place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Jul 2018 00:00:00 +0100<![CDATA[Paul Weeks ]]><![CDATA[ The new NPPF provides backing for upward extensions. This is designed to make use of the airspace above existing buildings where there is scope to extend them. An earlier consultation on this proposal for London contemplated the possibility of permitted development rights or local development orders but the preferred approach was identified as planning policies to support this type of development and it has been crystallised in the NPPF. This change to the NPPF is therefore not a permitted development right and should not be seen as an automatic yes. It does however give support in principle to extensions above existing residential and commercial premises for new homes. This is something that could be applied for anyway so it does not introduce a new concept, but it does confirm that such proposals for new homes should be supported as long as the extension would not reach beyond the adjoining roof lines and would be in keeping with the overall street scene and are well designed and safe access can be achieved. This approach is likely to be welcomed by the industry in principle as it supports the type of innovative approach that is required to find space for additional housing in highly developed areas. There will however be complications with these proposals with the most obvious one being viability. Some sites will undoubtedly be more complicated than others and this could lead to viability issues. How local authorities will treat these sites with regard to CIL and planning obligations will undoubtedly therefore have an impact on their deliverability. As with the other policies promoting higher density development, the impact of this type of development on existing infrastructure will need to be considered carefully to ensure that acceptable developments can take place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{0E40E673-8A3B-47F1-8B66-4A3A639AC214}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-viability-14422.aspxNPPF - Viability The revised NPPF includes new rules governing viability testing in both plan making and decision taking. Revisions to the online National Planning Practice Guidance concerning viability testing were also published. Paragraph 57 of the NPPF prescribes that "all viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available". Plan making The NPPF requires development viability to be taken into account by local authorities in the preparation of their development plans. This is reflected in the practice guidance, which emphasises that the "role for viability assessment is primarily at the plan making stage" In particular, it should be taken into account in strategic housing land availability assessments and in setting the contributions expected from development towards provision of affordable housing and infrastructure including that needed for education, health transport, flood and water management, green and digital infrastructure. The practice guidance expects this to be an iterative process informed by engagement with developers, landowners and infrastructure and affordable housing providers. The clear aim is for local authorities to adopt plans that are realistic and deliverable and do not compromise sustainable development. However, the NPPG recognises that it would be unrealistic to require viability testing of every site or to obtain assurance that individual sites are viable at the plan making stage. Instead, the practice guidance directs local authorities to adopt a "typology" approach where sites are grouped by shared characteristics and where average costs and values are used to make assumptions about how the viability of each type of site would be affected by all relevant policies. An exception is made for strategic sites which are critical to delivering the strategic priorities of the plan. Such sites should be subject to specific viability testing. Decision taking Both the NPPF and the practice guidance make clear that where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable so that no further viability testing should be required as part of the application. However, despite the emphasis on viability testing in plan making, there will continue to be a role for viability assessment of individual sites at the application stage. This is acknowledged in the NPPF and practice guidance. It will be for the applicant to justify the need for a viability assessment at the application stage. The weight to be attributed to the viability assessment will be for the decision maker. Any viability assessment should incorporate the standardised inputs and should also be based upon and refer back to any viability assessment that informed the development plan. Any deviation from the figures used in the viability assessment of the plan should be explained and supported by evidence. Standardised inputs The standardised inputs to viability assessment are set out in the practice guidance. In simple terms, a site will be viable if the value generated by a development is more than the cost of developing it. A key factor for developers and promoters of land is that the price paid for land is not a relevant justification for failing to accord with relevant policies in the plan. Instead, a "benchmark land value" should be established on the basis of the existing use value of the land plus a premium for the landowner. The premium should be the minimum return at which it is considered a reasonable landowner would be willing to sell their land. The standard inputs also include an allowance for developer return to reflect the potential risk of development. The practice guidance prescribes that this should be between 15% and 20% of gross development value. However, it goes on to say that a lower figure may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces risk. Guidance is also given on how gross development value should be defined and what costs should be taken into account in the viability assessment. Publically available The practice guidance now stipulates that any viability assessment should be made publicly available except in exceptional circumstances. In all cases, an executive summary should be prepared and made public. The clear expectation is that the information used in viability assessment will not normally be specific to a developer or commercially sensitive. Cited examples of commercially sensitive information are details of ongoing negotiations over land purchase and information relating to compensation that may be due to individuals, such as right to light compensation. Even where information is commercially sensitive, the practice guidance requires it to be aggregated and included as part of total costs figures in published assessments and executive summaries. A template for executive summaries is due to be published in the autumn. Implications In so far as it applies to decision taking, the NPPF and the practice guidance took immediate effect on its publication on 24 July 2018. For plan making, the policies of the previous NPPF will apply to plans submitted for examination on or before 24 January 2019. Developers pursuing or contemplating making an application supported by a viability statement will therefore need to be mindful of the new standardised inputs and the requirements for making the assessments publically available. In some cases, this may require already submitted viability appraisals to be reviewed and reworked in line with the practice guidance. In future, as more plans emerge that have been prepared in accordance with the new NPPF, it may prove more difficult for developers - particularly of sites allocated in the plan - to justify divergence from planning policy on grounds of viability. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Jul 2018 00:00:00 +0100<![CDATA[Matthew Stimson ]]><![CDATA[ The revised NPPF includes new rules governing viability testing in both plan making and decision taking. Revisions to the online National Planning Practice Guidance concerning viability testing were also published. Paragraph 57 of the NPPF prescribes that "all viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available". Plan making The NPPF requires development viability to be taken into account by local authorities in the preparation of their development plans. This is reflected in the practice guidance, which emphasises that the "role for viability assessment is primarily at the plan making stage" In particular, it should be taken into account in strategic housing land availability assessments and in setting the contributions expected from development towards provision of affordable housing and infrastructure including that needed for education, health transport, flood and water management, green and digital infrastructure. The practice guidance expects this to be an iterative process informed by engagement with developers, landowners and infrastructure and affordable housing providers. The clear aim is for local authorities to adopt plans that are realistic and deliverable and do not compromise sustainable development. However, the NPPG recognises that it would be unrealistic to require viability testing of every site or to obtain assurance that individual sites are viable at the plan making stage. Instead, the practice guidance directs local authorities to adopt a "typology" approach where sites are grouped by shared characteristics and where average costs and values are used to make assumptions about how the viability of each type of site would be affected by all relevant policies. An exception is made for strategic sites which are critical to delivering the strategic priorities of the plan. Such sites should be subject to specific viability testing. Decision taking Both the NPPF and the practice guidance make clear that where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable so that no further viability testing should be required as part of the application. However, despite the emphasis on viability testing in plan making, there will continue to be a role for viability assessment of individual sites at the application stage. This is acknowledged in the NPPF and practice guidance. It will be for the applicant to justify the need for a viability assessment at the application stage. The weight to be attributed to the viability assessment will be for the decision maker. Any viability assessment should incorporate the standardised inputs and should also be based upon and refer back to any viability assessment that informed the development plan. Any deviation from the figures used in the viability assessment of the plan should be explained and supported by evidence. Standardised inputs The standardised inputs to viability assessment are set out in the practice guidance. In simple terms, a site will be viable if the value generated by a development is more than the cost of developing it. A key factor for developers and promoters of land is that the price paid for land is not a relevant justification for failing to accord with relevant policies in the plan. Instead, a "benchmark land value" should be established on the basis of the existing use value of the land plus a premium for the landowner. The premium should be the minimum return at which it is considered a reasonable landowner would be willing to sell their land. The standard inputs also include an allowance for developer return to reflect the potential risk of development. The practice guidance prescribes that this should be between 15% and 20% of gross development value. However, it goes on to say that a lower figure may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces risk. Guidance is also given on how gross development value should be defined and what costs should be taken into account in the viability assessment. Publically available The practice guidance now stipulates that any viability assessment should be made publicly available except in exceptional circumstances. In all cases, an executive summary should be prepared and made public. The clear expectation is that the information used in viability assessment will not normally be specific to a developer or commercially sensitive. Cited examples of commercially sensitive information are details of ongoing negotiations over land purchase and information relating to compensation that may be due to individuals, such as right to light compensation. Even where information is commercially sensitive, the practice guidance requires it to be aggregated and included as part of total costs figures in published assessments and executive summaries. A template for executive summaries is due to be published in the autumn. Implications In so far as it applies to decision taking, the NPPF and the practice guidance took immediate effect on its publication on 24 July 2018. For plan making, the policies of the previous NPPF will apply to plans submitted for examination on or before 24 January 2019. Developers pursuing or contemplating making an application supported by a viability statement will therefore need to be mindful of the new standardised inputs and the requirements for making the assessments publically available. In some cases, this may require already submitted viability appraisals to be reviewed and reworked in line with the practice guidance. In future, as more plans emerge that have been prepared in accordance with the new NPPF, it may prove more difficult for developers - particularly of sites allocated in the plan - to justify divergence from planning policy on grounds of viability. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{D899EF03-0526-49FE-9432-C5C32B8C7B6E}https://www.shoosmiths.co.uk/client-resources/legal-updates/a-knotty-problem-strikes-again-14425.aspxA knotty problem strikes again The Court of Appeal has recently clarified the basis on which landowners with Japanese knotweed on their land may be liable to adjoining land owners for causing a legal nuisance. Our article A knotty problem reported a decision in February 2017 by Cardiff County Court to award damages against Network Rail for causing a nuisance to the owners of two residential properties next to land owned by Network Rail on which Japanese knotweed was growing. The court ruled that the presence of Japanese knotweed on Network Rail's land amounted to an unlawful interference with the claimants' quiet enjoyment of their properties, thereby affecting the amenity value. The Court of Appeal has recently rejected Network Rail's appeal against that decision, but for different reasons. In a separate case, the owners of a residential property were granted an injunction by Truro County Court against a neighbour who allowed Japanese knotweed to encroach onto their land from her land for many years. Although the injunction was issued in November 2017, the court's judgment has only recently been published. The Network Rail appeal In Network Rail Infrastructure Ltd v Williams, Network Rail challenged Cardiff County Court's decision to award damages to Mr Williams and Mr Waistell for the diminution in the value of their respective properties and for the cost of a treatment programme to treat Japanese knotweed growing on land owned by Network Rail adjacent to their respective properties. No physical damage was found to have been caused to either of their properties. However, the threat of damage caused by the presence of the Japanese knotweed and the impact it would have had if left untreated were found to have diminished land values. The court decided this amounted to undue interference with the claimants' enjoyment of their land and was therefore a nuisance. The Court of Appeal disagreed that a diminution in property values amounted to an undue interference with the enjoyment of land, as it considered that would have extended the scope of nuisance to cover pure economic losses. Instead, it ruled that the encroachment of the Japanese knotweed rhizomes (underground stems akin to roots) had diminished the claimants' ability to enjoy the amenity and utility of their properties. The Japanese knotweed and its rhizomes did not just carry the risk of future damage to buildings and land, but its presence imposed an immediate burden on the claimants, who faced an increased difficulty in their potential ability to develop their land because of the difficulty and expense of eradicating the Japanese knotweed. That was still a nuisance and the Court of Appeal upheld the decision to award damages to the claimants, amounting to 10% of the value of their respective properties. The Truro County Court case In Smith and Smith v Line, Mr and Mrs Smith claimed an injunction against their neighbour, Mrs Line, to force her to take action to deal with the presence of Japanese knotweed on her land. Japanese knotweed from Mrs Line's property had encroached onto their land in the past and they had dealt with those encroachments themselves. But, despite repeated requests, Mrs Line had failed to address the infestation on her land and it once again threatened to encroach on the Smiths' land. The Smiths said that Mrs Line's actions and the presence of the Japanese knotweed had reduced the value of their property. Although they could have claimed damages, they instead sought an injunction compelling Mrs Line to address the problem once and for all. Mrs Line argued that there had always been Japanese knotweed on both properties, that any encroachment had actually been onto her land from the Smiths' land. Her case was that, in any event, she had taken all reasonable steps to control the Japanese knotweed on her property. However, expert evidence showed seven separate areas of Japanese knotweed on Mrs Line's land, some within a metre of the boundary with the Smiths' land. Truro County Court ruled that the encroachment of the Japanese knotweed from Mrs Line's land onto the Smiths' land was an undue interference with the Smiths' comfortable and convenient enjoyment of their land. Mrs Line had been aware of the presence of the Japanese knotweed on her land for a long time. The Smiths had successfully eradicated it from their land and Mrs Line's response to the problem had been inadequate. She had known that a management programme with an accredited expert was required, but only chose to pursue it while awaiting the county court's judgment. Given the risk that Mrs Line would not follow through with the management programme, the county court granted an injunction compelling her to do so. Comment Both decisions are to be welcomed. They confirm that there is a remedy for those whose land is threatened with the encroachment of Japanese knotweed from neighbouring properties and that, even if there is no actual damage to property, the presence of Japanese knotweed can affect amenity value. The Truro County Court decision also confirms that in appropriate cases the courts will grant injunctions requiring Japanese knotweed to be properly treated. Our article A knotty problem contains some practical considerations for owners and occupiers of land with Japanese Knotweed growing on it. Network Rail Infrastructure Limited v Williams and Waistell [2018] EWCA Civ 1514 Smith and Smith v Line (case number C00TR216), Truro County Court, 6 November 2017 DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Jul 2018 00:00:00 +0100<![CDATA[Angus Evers Lucy Shepherd ]]><![CDATA[ The Court of Appeal has recently clarified the basis on which landowners with Japanese knotweed on their land may be liable to adjoining land owners for causing a legal nuisance. Our article A knotty problem reported a decision in February 2017 by Cardiff County Court to award damages against Network Rail for causing a nuisance to the owners of two residential properties next to land owned by Network Rail on which Japanese knotweed was growing. The court ruled that the presence of Japanese knotweed on Network Rail's land amounted to an unlawful interference with the claimants' quiet enjoyment of their properties, thereby affecting the amenity value. The Court of Appeal has recently rejected Network Rail's appeal against that decision, but for different reasons. In a separate case, the owners of a residential property were granted an injunction by Truro County Court against a neighbour who allowed Japanese knotweed to encroach onto their land from her land for many years. Although the injunction was issued in November 2017, the court's judgment has only recently been published. The Network Rail appeal In Network Rail Infrastructure Ltd v Williams, Network Rail challenged Cardiff County Court's decision to award damages to Mr Williams and Mr Waistell for the diminution in the value of their respective properties and for the cost of a treatment programme to treat Japanese knotweed growing on land owned by Network Rail adjacent to their respective properties. No physical damage was found to have been caused to either of their properties. However, the threat of damage caused by the presence of the Japanese knotweed and the impact it would have had if left untreated were found to have diminished land values. The court decided this amounted to undue interference with the claimants' enjoyment of their land and was therefore a nuisance. The Court of Appeal disagreed that a diminution in property values amounted to an undue interference with the enjoyment of land, as it considered that would have extended the scope of nuisance to cover pure economic losses. Instead, it ruled that the encroachment of the Japanese knotweed rhizomes (underground stems akin to roots) had diminished the claimants' ability to enjoy the amenity and utility of their properties. The Japanese knotweed and its rhizomes did not just carry the risk of future damage to buildings and land, but its presence imposed an immediate burden on the claimants, who faced an increased difficulty in their potential ability to develop their land because of the difficulty and expense of eradicating the Japanese knotweed. That was still a nuisance and the Court of Appeal upheld the decision to award damages to the claimants, amounting to 10% of the value of their respective properties. The Truro County Court case In Smith and Smith v Line, Mr and Mrs Smith claimed an injunction against their neighbour, Mrs Line, to force her to take action to deal with the presence of Japanese knotweed on her land. Japanese knotweed from Mrs Line's property had encroached onto their land in the past and they had dealt with those encroachments themselves. But, despite repeated requests, Mrs Line had failed to address the infestation on her land and it once again threatened to encroach on the Smiths' land. The Smiths said that Mrs Line's actions and the presence of the Japanese knotweed had reduced the value of their property. Although they could have claimed damages, they instead sought an injunction compelling Mrs Line to address the problem once and for all. Mrs Line argued that there had always been Japanese knotweed on both properties, that any encroachment had actually been onto her land from the Smiths' land. Her case was that, in any event, she had taken all reasonable steps to control the Japanese knotweed on her property. However, expert evidence showed seven separate areas of Japanese knotweed on Mrs Line's land, some within a metre of the boundary with the Smiths' land. Truro County Court ruled that the encroachment of the Japanese knotweed from Mrs Line's land onto the Smiths' land was an undue interference with the Smiths' comfortable and convenient enjoyment of their land. Mrs Line had been aware of the presence of the Japanese knotweed on her land for a long time. The Smiths had successfully eradicated it from their land and Mrs Line's response to the problem had been inadequate. She had known that a management programme with an accredited expert was required, but only chose to pursue it while awaiting the county court's judgment. Given the risk that Mrs Line would not follow through with the management programme, the county court granted an injunction compelling her to do so. Comment Both decisions are to be welcomed. They confirm that there is a remedy for those whose land is threatened with the encroachment of Japanese knotweed from neighbouring properties and that, even if there is no actual damage to property, the presence of Japanese knotweed can affect amenity value. The Truro County Court decision also confirms that in appropriate cases the courts will grant injunctions requiring Japanese knotweed to be properly treated. Our article A knotty problem contains some practical considerations for owners and occupiers of land with Japanese Knotweed growing on it. Network Rail Infrastructure Limited v Williams and Waistell [2018] EWCA Civ 1514 Smith and Smith v Line (case number C00TR216), Truro County Court, 6 November 2017 DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{378FC8DA-A2E6-4493-8C25-E1DC30573D93}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf2-revised-national-planning-policy-guidance-14402.aspxNPPF2: Revised National Planning Policy Guidance Released The long anticipated revised NPPF proposals were published on 24 July 2018. These bring forward proposals to amend existing policy first unveiled in the Housing White Paper and the Planning For The Right Homes In The Right Places consultation last year. NPPF 2 is pro-growth but with caveats. The emphasis is on building attractive and better-designed homes in areas where they are most needed. The "right houses in the right places" is now a familiar mantra, although so is the government's continued (and it appears now enhanced), protection of the green belt. It also seeks to plug the gaps, ambiguities and inconsistencies in NPPF 1 that were exposed in previous appeal decisions and court challenges. In doing so, there is an expectation that it will speed up plan making, decision taking and the rate of housing delivery. Whether it goes far enough to appease those previous critics of the draft proposals (specifically that they will not solve the housing crisis), does, of course, remain to be seen. The revised framework seeks greater responsibility and accountability for housing delivery from local councils and developers and so encourages more collaboration between strategic planning authorities, more pro-activity, positivity and creativity from local planning authorities to development proposals, quicker decision making and use of fewer but more focused conditions to encourage timely delivery. For their part, developers will need to demonstrate a more effective use of land, increased housing densities and in many cases a minimum on-site affordable housing provision of 10% of the total dwellings constructed. Off-site provision in lieu (normally a financial contribution, will now be the exception. To circumvent delays resulting from viability arguments, there is also an assumption of viability where up-to-date policies have set out the contributions expected from development. It will be up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. However, that all viability assessment will have to reflect the recommended approach in national planning guidance, including standardised inputs, and will now be made publicly available. The old paragraph 14 presumption in favour of sustainable development is now replaced with a new and revised paragraph 11 presumption which includes reference to a new "housing delivery test. This will cause concern to local planning authorities that have underperformed on housing delivery as it places greater responsibility on them to deliver target housing numbers and includes sanctions for failing to meet housebuilding targets in local plans. This will effectively render its adopted local plan policies as out-of-date", triggering the paragraph 11 presumption in favour of development. The new housing delivery test will apply from an appointed date in November 2018 and transitional provisions will apply on a sliding scale from that date. In unveiling the new framework, Secretary of State for Housing, Communities &amp; Local Government, and James Brokenshire MP said: "Fundamental to building the homes our country needs is ensuring that our planning system is fit for the future. This revised planning framework sets out our vision of a planning system that delivers the homes we need. I am clear that quantity must never compromise the quality of what is built, and this is reflected in the new rules". Our planning team is reviewing the government's proposals in more detail and will upload a series of briefing notes on specific areas covered in NPPF 2 to the Shoosmiths website this week. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 24 Jul 2018 00:00:00 +0100<![CDATA[Tim Willis ]]><![CDATA[ The long anticipated revised NPPF proposals were published on 24 July 2018. These bring forward proposals to amend existing policy first unveiled in the Housing White Paper and the Planning For The Right Homes In The Right Places consultation last year. NPPF 2 is pro-growth but with caveats. The emphasis is on building attractive and better-designed homes in areas where they are most needed. The "right houses in the right places" is now a familiar mantra, although so is the government's continued (and it appears now enhanced), protection of the green belt. It also seeks to plug the gaps, ambiguities and inconsistencies in NPPF 1 that were exposed in previous appeal decisions and court challenges. In doing so, there is an expectation that it will speed up plan making, decision taking and the rate of housing delivery. Whether it goes far enough to appease those previous critics of the draft proposals (specifically that they will not solve the housing crisis), does, of course, remain to be seen. The revised framework seeks greater responsibility and accountability for housing delivery from local councils and developers and so encourages more collaboration between strategic planning authorities, more pro-activity, positivity and creativity from local planning authorities to development proposals, quicker decision making and use of fewer but more focused conditions to encourage timely delivery. For their part, developers will need to demonstrate a more effective use of land, increased housing densities and in many cases a minimum on-site affordable housing provision of 10% of the total dwellings constructed. Off-site provision in lieu (normally a financial contribution, will now be the exception. To circumvent delays resulting from viability arguments, there is also an assumption of viability where up-to-date policies have set out the contributions expected from development. It will be up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. However, that all viability assessment will have to reflect the recommended approach in national planning guidance, including standardised inputs, and will now be made publicly available. The old paragraph 14 presumption in favour of sustainable development is now replaced with a new and revised paragraph 11 presumption which includes reference to a new "housing delivery test. This will cause concern to local planning authorities that have underperformed on housing delivery as it places greater responsibility on them to deliver target housing numbers and includes sanctions for failing to meet housebuilding targets in local plans. This will effectively render its adopted local plan policies as out-of-date", triggering the paragraph 11 presumption in favour of development. The new housing delivery test will apply from an appointed date in November 2018 and transitional provisions will apply on a sliding scale from that date. In unveiling the new framework, Secretary of State for Housing, Communities &amp; Local Government, and James Brokenshire MP said: "Fundamental to building the homes our country needs is ensuring that our planning system is fit for the future. This revised planning framework sets out our vision of a planning system that delivers the homes we need. I am clear that quantity must never compromise the quality of what is built, and this is reflected in the new rules". Our planning team is reviewing the government's proposals in more detail and will upload a series of briefing notes on specific areas covered in NPPF 2 to the Shoosmiths website this week. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{ECAE2E40-89BD-4E7D-B8FC-6A447B92EDFB}https://www.shoosmiths.co.uk/client-resources/legal-updates/assumptions-for-base-land-values-14122.aspxAssumptions for base land values A recent high court decision concerning the assumptions for base land value in viability assessments has caught a lot of attention. In his summary on Parkhurst Road Ltd v Secretary of State for Communities and Local Government and London Borough of Islington [2018], Mr Justice Holgate held that the burden of demonstrating that a viability assessment that is sought to be relied upon to argue a reduction the policy requirements for affordable housing (or any other planning obligations), is firmly on the person seeking to rely on that assessment. It is not the job of the local planning authority to provide that assessment or, if it is rejected on proper grounds, provide an alternative. The price paid is rarely determinative, any comparable must, to have any weight, be shown to have taken into account policy requirements and not have misjudged the development potential of the site. Mr Justice Holgate held that: any base land value used in a viability assessment will need to do better than "doing little more than averaging land values obtained from a large number of transactions within a district" which falls into a circularity trap. That is such a valuation is likely to inflate land values by including sites where there was a misjudgement over the likely development potential of the land or those where appropriate planning requirements (such as policy complainant affordable housing) have not been taken into account. The circularit' is that a base land value based upon such flawed comparables will merely provide a further flawed comparable; "adequate information about comparables relied upon (including the planning context and circumstances influencing bids and the transacted price)" must be obtained; "[o]n the other hand, it is understandable why developers and landowners may argue against local policy statements that base land value should simply conform to an existing use value plus a percentage basis of valuation, especially where the document has not been subjected to independent statutory examination prior to adoption"; the price paid for land is not determinative. This is also reflected in the draft revised NPPG. Point 3 above needs to be considered against the draft revised NPPG. If it is published in its current form, it promotes the use of existing use value+ for a base land value assessments. To many developers the judgment, ignoring price paid, may seem to fly in face of reality. To Local Planning Authorities it is likely to be welcome news in what they perceive as a fight to prevent the watering down of policy requirements under the guise of viability issues. It also neatly plays into the government's apparent drive to limit the effectiveness of viability assessments in reducing (mainly) affordable housing provision. To the extent it and the revised NPPG achieves that without limiting the supply of land for housing development remains to be seen. While it could reduce the price sought for land or more accurately the price that developers are willing to pay for land, it could, of course, also have the effect of reducing the land available. One matter that we can be certain about, is that limiting viability assessments effect on, in particularly the provision of affordable housing, is a real direction of travel. This case brings that into focus now. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.Tue, 08 May 2018 00:00:00 +0100<![CDATA[Tim Johnson]]><![CDATA[ A recent high court decision concerning the assumptions for base land value in viability assessments has caught a lot of attention. In his summary on Parkhurst Road Ltd v Secretary of State for Communities and Local Government and London Borough of Islington [2018], Mr Justice Holgate held that the burden of demonstrating that a viability assessment that is sought to be relied upon to argue a reduction the policy requirements for affordable housing (or any other planning obligations), is firmly on the person seeking to rely on that assessment. It is not the job of the local planning authority to provide that assessment or, if it is rejected on proper grounds, provide an alternative. The price paid is rarely determinative, any comparable must, to have any weight, be shown to have taken into account policy requirements and not have misjudged the development potential of the site. Mr Justice Holgate held that: any base land value used in a viability assessment will need to do better than "doing little more than averaging land values obtained from a large number of transactions within a district" which falls into a circularity trap. That is such a valuation is likely to inflate land values by including sites where there was a misjudgement over the likely development potential of the land or those where appropriate planning requirements (such as policy complainant affordable housing) have not been taken into account. The circularit' is that a base land value based upon such flawed comparables will merely provide a further flawed comparable; "adequate information about comparables relied upon (including the planning context and circumstances influencing bids and the transacted price)" must be obtained; "[o]n the other hand, it is understandable why developers and landowners may argue against local policy statements that base land value should simply conform to an existing use value plus a percentage basis of valuation, especially where the document has not been subjected to independent statutory examination prior to adoption"; the price paid for land is not determinative. This is also reflected in the draft revised NPPG. Point 3 above needs to be considered against the draft revised NPPG. If it is published in its current form, it promotes the use of existing use value+ for a base land value assessments. To many developers the judgment, ignoring price paid, may seem to fly in face of reality. To Local Planning Authorities it is likely to be welcome news in what they perceive as a fight to prevent the watering down of policy requirements under the guise of viability issues. It also neatly plays into the government's apparent drive to limit the effectiveness of viability assessments in reducing (mainly) affordable housing provision. To the extent it and the revised NPPG achieves that without limiting the supply of land for housing development remains to be seen. While it could reduce the price sought for land or more accurately the price that developers are willing to pay for land, it could, of course, also have the effect of reducing the land available. One matter that we can be certain about, is that limiting viability assessments effect on, in particularly the provision of affordable housing, is a real direction of travel. This case brings that into focus now. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.]]>{7368F821-91B2-468A-A86E-ADE50772FD1D}https://www.shoosmiths.co.uk/client-resources/legal-updates/npff-2018-principle-changes-13846.aspxNPPF 2018 - Housing summary The NPPF has been with us, without amendment for around 6 years which for national planning policy is close to a record. We have had Written Ministerial Statement and the NPPG to supplement it but the document itself has not changed during that period. Now, on 5 March 2018, after much anticipation and false starts the Ministry of Housing, Communities and Local Government have issued the consultation draft for a revised Framework. The consultation period ends at 23:45 on 10 May 2018 with most commentators expecting the final version of the Framework to pretty much follow this draft. The Prime Minister, introducing the draft focused on the need for housing delivery to increase significantly, the draft Framework echoes this. Below is a briefing note on the principle changes to the Framework polices affecting the delivery of housing. This is not intended to be an all encompassing treatise on the consultation draft but merely to pick out some of the more noteworthy issues. Where "NPPF" is referred to that is to the existing NPPF, where "NPPFC" is referred to that is to the NPPF consultation draft. 1. Written Ministerial Statements: Various cases have raised questions over the weight to be given to ministerial statements, for instance the affordable housing ministerial statement and those relating to neighbourhood plans and the titled balance (see for instance R. (on the application of West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 and Richborough Estates Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 Admin). The NPPFC now expressly states at paragraph 6 that "other statements of government policy may be material when preparing plans or deciding applications, such as relevant Written Ministerial Statements and endorsed recommendations of the National Infrastructure Commission". Not a major point but it shows early on in the NPPFC the desire the government has to clear up any issues that have arisen through the courts, that is reflected with greater importance later. 2. What is Sustainable Development: Paragraph 8 NPPFC has reworded the meaning of sustainable development for the purpose of the guidance. The NPPFC stated that the social objective is achieved by (amongst other matters) "providing the supply of housing required to meet the needs of the present and future generations.". The NPPFC has tweaked this to "by ensuring that a sufficient number and range of homes can be provided to meet the needs of present and future generations". A small change but with the changes to the requirement to ensure that housing need is met this may become more important. 3. The Titled Balance: The presumption in favour of sustainable development, the titled balance, (paragraph 11 of the NPPFC) loses the problematic "golden thread running through both plan-making and decision-taking" to a simple application of the presumption in decision-making: "decisions should apply a presumption in favour of sustainable development". This reflects the recent case law including the Supreme Court decision (Secretary of State for Communities and Local Government v Hopkins Homes Ltd, Richborough Estates Partnership LLP v Cheshire East BC [2017] UKSC 37) and is unlikely, on its own to change decision making but there is more to come. 4. There are, as expected, further changes to the presumption: 4.1 The paragraph 49 NPPF enjoin that relevant policies for the supply of housing should not be considered up to date if a 5 year supply of deliverable sites cannot be demonstrated has gone. 4.2 Paragraph 75 NPPFC goes further and in addition to applying the tilted balance1 where the LPA "cannot demonstrate a five-year supply of deliverable housing sites" it adds "or where the Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years". 4.3 This puts the need to deliver and housing and not just identify sites firmly on the centre stage. It will no longer be enough for a local planning authority to state that they can show 5 years' worth of sites that have the potential to be delivered, they must also show that they are delivering housing to meet their requirements or be subject to the titled balance; 4.4 Of note is that those deliverable sites must now include 20% that are of half and hectare of less (paragraph 69(a) NPPFC). 4.5 There are a few further points to take note of here: 4.5.1 We still have the distinction (see St Modwen Developments Ltd [2017] EWCA Civ 1643) between deliverability and delivery set out in paragraph 47 and 49 of the NPPF. Paragraph 68 NPPF brings a condensed footnote 11 of the NPPF into the main text but still requires an LPA to demonstrate a five year supply of specific, deliverable sites. For a site to be regarded as deliverable it does not need to be "certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent possible, within five years" (Linblom LJ in St Modwen at 39); 4.5.2 The addition of a requirement for an assessment of housing delivery at paragraph 75 of the NPPFC dilutes that substantially and reflects the arguments that are being put forward now that the crux is delivery of sites rather than the ability to identify potential sites; 4.5.3 There is now also a specific policy requiring strategic plans to include a "trajectory illustrating the expected rate of housing delivery over the plan period" (paragraph 74 NPPFC) which bears upon the buffer to be applied in assessing housing need and thus the numbers of deliverable sites that need to be identified, as follows: (a) A 5% buffer is applied automatically (no change); (b) A new 10% buffer is applied if a "local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan": (i) Paragraph 76 NPPFC states that an annual position statement is one produced "through engagement with developers and others who have an impact on delivery, and been considered by the Secretary of State and incorporates all the recommendations of the Secretary of State, where the position on specific sites could not be agreed during the engagement process." Whilst there is not any detail of what consideration by the Secretary of State would entail the ability to produce such a statement in good time does put some doubt on the realistic use of such statements; (ii) Recently adopted has been given a narrow meaning (footnote 28 of the NPPFC) of "adopted between 1 May and 31 October will be considered 'recently adopted' until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October that year". That is 18 months. Whether this goes to interpretation of whether a local plan is out of date for the purposes of NPPFC paragraph 11(d) or the weight to be given to a local plan and that is adopted outside of these periods will no doubt be the subject of argument if the revised NPPFC keeps this; (c) The 20% buffer remains but is brought into play "where there has been significant under delivery of housing over the previous three years" rather than the NPPF "record of persistent under delivery of housing". This provides a useful benchmark to assessing when the 20% buffer will apply, reducing the amount of time spent arguing what the subjective "persistent under delivery" means to a more objective view of the last three years. We do still a potentially subjective "significant" however paragraph 75 NPPFC states that the titled balance is brought into play where the new Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years. Substantially is defined in footnote 30 to the NPPFC as delivery below 75% of the housing requirement. It would be useful to align "significant" in respect of the 20% buffer and "substantial" in respect of the titled balance but this is helpful; 4.5.4 There is a noticeable and deliberate move away from the paragraph 49 NPPF "relevant policies for the supply of housing" to the paragraph 11(d) NPPFC "policies which are most important for determining the application". This effectively negates part of the Supreme Court's decision in Suffolk Coastal and brings into play arguments as to what policies are determinative for the application (surely any that are considered material) and whether they are out of date. The titled balance will be applied and any of these policies will be out of date rather than those that just relate to housing supply. This could have far reaching implications in assessing planning applications, particularly at appeal; 4.5.5 The presumption in favour of the development plan is repeated at paragraph 12 NPPFC but importantly the paragraph 14 NPPF approve "development proposals that accord with the development plan without delay" has been changed to state that the development plan must be up to date for this to apply. In all probability this merely strengthens the paragraph 11(d) titled balance application in respect of out of date development plan polices; 4.5.6 A problem with the NPPF titled balance application was whether it was disapplied where "specific policies in the Framework indicate development should be restricted". The list of examples of such specific polices found at footnote 9 to the NPPF has gone. This exception to the titled balance now finds itself in pole position with a list of polices protecting assets of particular importance that can disapply the titled balance when they provide "a clear reason for refusing the development proposed" found at footnote 7 of the NPPFC. This list is now exclusive rather than "for example". The need for a decision maker to assess whether application of these polices (if applicable) is enough to disapply the presumption remains but is strengthened to a requirement that there must be a clear reason for this to be the case; 4.5.7 The existing requirement to assess whether any adverse impacts of applying the titled balance "would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole" remains unchanged in paragraph 11(d)(ii) of the NPPFC; 4.6 The Written Ministerial Statement that was the subject of the Richborough Estates case earlier this year, that only a 3 year supply of deliverable housing sites needs to be identified if there is a neighbourhood plan that identifies sites for housing now finds itself in the Framework with some important and welcome changes and clarification: 4.6.1 The neighbourhood plan must have been passed at referendum two years or less before the decision on a planning application is made; 4.6.2 The neighbourhood plan must contain policies and allocations to meet its identified housing requirement. Paragraph 66 of the NPPFC adds a new requirement for local planning authorities to set out in Strategic Plans a housing requirement figure for designated neighbourhood areas and at paragraph 67 of the NPPFC that where that is not possible an indicative figure should be provided; 4.6.3 The local planning authority must be able to identify at least a three year housing supply against its five year target and (this is new) its "housing delivery was at least 45% of that required [assessed against the Housing Delivery Test from November 2018] over the previous three years". 5. Green Belt: There is not any changes to the requirement to show very special circumstances before granting permission for inappropriate development in the green belt but there are some addictions to development that is not to be considered as inappropriate, as follows: 5.1 Rather than just the provision of facilities for outdoor sport, recreation and cemeteries this has been extended to where there is an existing use and a change of use of that land to these uses as long as that does not materially affect the openness of the green belt. It also now includes burial grounds and allotments; 5.2 The addition to the exception for limited infilling to where that would use previously development land where that contributes to meeting an identified affordable housing need; 5.3 Development brought forward under a Neighbourhood Development Order. [1] Paragraph 11(d) NPPFC states "where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date" then the titled balance applies subject to the two exceptions at paragraph 11(d)(i) and (ii). DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[ The NPPF has been with us, without amendment for around 6 years which for national planning policy is close to a record. We have had Written Ministerial Statement and the NPPG to supplement it but the document itself has not changed during that period. Now, on 5 March 2018, after much anticipation and false starts the Ministry of Housing, Communities and Local Government have issued the consultation draft for a revised Framework. The consultation period ends at 23:45 on 10 May 2018 with most commentators expecting the final version of the Framework to pretty much follow this draft. The Prime Minister, introducing the draft focused on the need for housing delivery to increase significantly, the draft Framework echoes this. Below is a briefing note on the principle changes to the Framework polices affecting the delivery of housing. This is not intended to be an all encompassing treatise on the consultation draft but merely to pick out some of the more noteworthy issues. Where "NPPF" is referred to that is to the existing NPPF, where "NPPFC" is referred to that is to the NPPF consultation draft. 1. Written Ministerial Statements: Various cases have raised questions over the weight to be given to ministerial statements, for instance the affordable housing ministerial statement and those relating to neighbourhood plans and the titled balance (see for instance R. (on the application of West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441 and Richborough Estates Ltd v Secretary of State for Housing, Communities and Local Government [2018] EWHC 33 Admin). The NPPFC now expressly states at paragraph 6 that "other statements of government policy may be material when preparing plans or deciding applications, such as relevant Written Ministerial Statements and endorsed recommendations of the National Infrastructure Commission". Not a major point but it shows early on in the NPPFC the desire the government has to clear up any issues that have arisen through the courts, that is reflected with greater importance later. 2. What is Sustainable Development: Paragraph 8 NPPFC has reworded the meaning of sustainable development for the purpose of the guidance. The NPPFC stated that the social objective is achieved by (amongst other matters) "providing the supply of housing required to meet the needs of the present and future generations.". The NPPFC has tweaked this to "by ensuring that a sufficient number and range of homes can be provided to meet the needs of present and future generations". A small change but with the changes to the requirement to ensure that housing need is met this may become more important. 3. The Titled Balance: The presumption in favour of sustainable development, the titled balance, (paragraph 11 of the NPPFC) loses the problematic "golden thread running through both plan-making and decision-taking" to a simple application of the presumption in decision-making: "decisions should apply a presumption in favour of sustainable development". This reflects the recent case law including the Supreme Court decision (Secretary of State for Communities and Local Government v Hopkins Homes Ltd, Richborough Estates Partnership LLP v Cheshire East BC [2017] UKSC 37) and is unlikely, on its own to change decision making but there is more to come. 4. There are, as expected, further changes to the presumption: 4.1 The paragraph 49 NPPF enjoin that relevant policies for the supply of housing should not be considered up to date if a 5 year supply of deliverable sites cannot be demonstrated has gone. 4.2 Paragraph 75 NPPFC goes further and in addition to applying the tilted balance1 where the LPA "cannot demonstrate a five-year supply of deliverable housing sites" it adds "or where the Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years". 4.3 This puts the need to deliver and housing and not just identify sites firmly on the centre stage. It will no longer be enough for a local planning authority to state that they can show 5 years' worth of sites that have the potential to be delivered, they must also show that they are delivering housing to meet their requirements or be subject to the titled balance; 4.4 Of note is that those deliverable sites must now include 20% that are of half and hectare of less (paragraph 69(a) NPPFC). 4.5 There are a few further points to take note of here: 4.5.1 We still have the distinction (see St Modwen Developments Ltd [2017] EWCA Civ 1643) between deliverability and delivery set out in paragraph 47 and 49 of the NPPF. Paragraph 68 NPPF brings a condensed footnote 11 of the NPPF into the main text but still requires an LPA to demonstrate a five year supply of specific, deliverable sites. For a site to be regarded as deliverable it does not need to be "certain or probable that housing will in fact be delivered upon it, or delivered to the fullest extent possible, within five years" (Linblom LJ in St Modwen at 39); 4.5.2 The addition of a requirement for an assessment of housing delivery at paragraph 75 of the NPPFC dilutes that substantially and reflects the arguments that are being put forward now that the crux is delivery of sites rather than the ability to identify potential sites; 4.5.3 There is now also a specific policy requiring strategic plans to include a "trajectory illustrating the expected rate of housing delivery over the plan period" (paragraph 74 NPPFC) which bears upon the buffer to be applied in assessing housing need and thus the numbers of deliverable sites that need to be identified, as follows: (a) A 5% buffer is applied automatically (no change); (b) A new 10% buffer is applied if a "local planning authority wishes to demonstrate a five year supply of deliverable sites through an annual position statement or recently adopted plan": (i) Paragraph 76 NPPFC states that an annual position statement is one produced "through engagement with developers and others who have an impact on delivery, and been considered by the Secretary of State and incorporates all the recommendations of the Secretary of State, where the position on specific sites could not be agreed during the engagement process." Whilst there is not any detail of what consideration by the Secretary of State would entail the ability to produce such a statement in good time does put some doubt on the realistic use of such statements; (ii) Recently adopted has been given a narrow meaning (footnote 28 of the NPPFC) of "adopted between 1 May and 31 October will be considered 'recently adopted' until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October that year". That is 18 months. Whether this goes to interpretation of whether a local plan is out of date for the purposes of NPPFC paragraph 11(d) or the weight to be given to a local plan and that is adopted outside of these periods will no doubt be the subject of argument if the revised NPPFC keeps this; (c) The 20% buffer remains but is brought into play "where there has been significant under delivery of housing over the previous three years" rather than the NPPF "record of persistent under delivery of housing". This provides a useful benchmark to assessing when the 20% buffer will apply, reducing the amount of time spent arguing what the subjective "persistent under delivery" means to a more objective view of the last three years. We do still a potentially subjective "significant" however paragraph 75 NPPFC states that the titled balance is brought into play where the new Housing Delivery Test indicates that delivery of housing has been substantially below the housing requirement over the previous three years. Substantially is defined in footnote 30 to the NPPFC as delivery below 75% of the housing requirement. It would be useful to align "significant" in respect of the 20% buffer and "substantial" in respect of the titled balance but this is helpful; 4.5.4 There is a noticeable and deliberate move away from the paragraph 49 NPPF "relevant policies for the supply of housing" to the paragraph 11(d) NPPFC "policies which are most important for determining the application". This effectively negates part of the Supreme Court's decision in Suffolk Coastal and brings into play arguments as to what policies are determinative for the application (surely any that are considered material) and whether they are out of date. The titled balance will be applied and any of these policies will be out of date rather than those that just relate to housing supply. This could have far reaching implications in assessing planning applications, particularly at appeal; 4.5.5 The presumption in favour of the development plan is repeated at paragraph 12 NPPFC but importantly the paragraph 14 NPPF approve "development proposals that accord with the development plan without delay" has been changed to state that the development plan must be up to date for this to apply. In all probability this merely strengthens the paragraph 11(d) titled balance application in respect of out of date development plan polices; 4.5.6 A problem with the NPPF titled balance application was whether it was disapplied where "specific policies in the Framework indicate development should be restricted". The list of examples of such specific polices found at footnote 9 to the NPPF has gone. This exception to the titled balance now finds itself in pole position with a list of polices protecting assets of particular importance that can disapply the titled balance when they provide "a clear reason for refusing the development proposed" found at footnote 7 of the NPPFC. This list is now exclusive rather than "for example". The need for a decision maker to assess whether application of these polices (if applicable) is enough to disapply the presumption remains but is strengthened to a requirement that there must be a clear reason for this to be the case; 4.5.7 The existing requirement to assess whether any adverse impacts of applying the titled balance "would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole" remains unchanged in paragraph 11(d)(ii) of the NPPFC; 4.6 The Written Ministerial Statement that was the subject of the Richborough Estates case earlier this year, that only a 3 year supply of deliverable housing sites needs to be identified if there is a neighbourhood plan that identifies sites for housing now finds itself in the Framework with some important and welcome changes and clarification: 4.6.1 The neighbourhood plan must have been passed at referendum two years or less before the decision on a planning application is made; 4.6.2 The neighbourhood plan must contain policies and allocations to meet its identified housing requirement. Paragraph 66 of the NPPFC adds a new requirement for local planning authorities to set out in Strategic Plans a housing requirement figure for designated neighbourhood areas and at paragraph 67 of the NPPFC that where that is not possible an indicative figure should be provided; 4.6.3 The local planning authority must be able to identify at least a three year housing supply against its five year target and (this is new) its "housing delivery was at least 45% of that required [assessed against the Housing Delivery Test from November 2018] over the previous three years". 5. Green Belt: There is not any changes to the requirement to show very special circumstances before granting permission for inappropriate development in the green belt but there are some addictions to development that is not to be considered as inappropriate, as follows: 5.1 Rather than just the provision of facilities for outdoor sport, recreation and cemeteries this has been extended to where there is an existing use and a change of use of that land to these uses as long as that does not materially affect the openness of the green belt. It also now includes burial grounds and allotments; 5.2 The addition to the exception for limited infilling to where that would use previously development land where that contributes to meeting an identified affordable housing need; 5.3 Development brought forward under a Neighbourhood Development Order. [1] Paragraph 11(d) NPPFC states "where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date" then the titled balance applies subject to the two exceptions at paragraph 11(d)(i) and (ii). DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{6EFBBF53-864D-450B-92DA-242E09BEE137}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-agent-of-change-13867.aspxNPPF 2018 - &#39;Agent of Change&#39; Having first announced proposed changes to the National Planning Policy Framework (NPPF) in December 2015, the government's long awaited draft revisions to the NPPF emerged yesterday. This briefing note considers the proposal to introduce into the NPPF specific reference to the 'agent of change' principle, the principle by which a person or business introducing a new land use is responsible for managing the impact of that change. Specific mention of the 'agent of change' principle was contained in the Annex to the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP). The HWP proposed an amendment to the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. It was considered that this proposal would mitigate the risk arising from the imposition of restrictions or the possible closure of existing businesses due to noise and other complaints from the occupiers of new developments. In a statement made by the Ministry of Housing, Communities and Local Government on 18 January 2018, it was confirmed that the NPPF would be clarified to include detailed reference to the 'agent of change' principle. The revised draft NPPF, which has been published for consultation, implements the HWP proposal. In particular, paragraph 180 (contained in Chapter 15: Conserving and enhancing the natural environment) states that planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. The paragraph goes on to confirm that where an existing business or community facility has effects that could be deemed a statutory nuisance in the light of new development in its vicinity (including changes of use), the applicant (or 'agent of change') should be required to secure suitable mitigation before the development has been completed. If, following the consultation on the revised draft NPPF, the emphasis on the 'agent of change' principle is retained as a feature of national planning policy, the principle will be a material consideration to be taken account of by decision-makers in the determination of planning applications. However, elements of the 'agent of change' principle can already be found in existing policy - paragraph 123 of the current NPPF advises that planning policies and decisions should recognise that existing businesses should not have unreasonable restrictions placed on them because of changes to nearby land uses; and the supporting Planning Practice Guidance indicates that consideration should be given to the potential effects of locating new residential development close to existing businesses that cause noise. Therefore, the proposal to include an explicit reference to the 'agent of change' principle in the NPPF amounts to a change of emphasis rather than the introduction of an alien and entirely novel concept. There is a clear tension between the 'agent of change' principle and other policy objectives, such as housing supply - new development could be hindered if too much emphasis is placed on the principle, thereby giving rise to a detrimental impact on the local economy; and the technical evidence submitted in support of noise-sensitive developments may become the focus of more intense scrutiny by local planning authorities. Furthermore, the use of conditions and/or planning obligations to mitigate noise impacts and other nuisances could increase, which itself may result in knock on effects for scheme viability and the ability for other policy objectives, such as affordable housing targets, to be met. Whilst the consultation on the revised draft NPPF is still to run its course, there does appear to be a growing impetus to afford greater protection to music venues and the night-time economy by putting the 'agent of change' principle on a more formal and clear footing. By way of example, at the turn of the year the House of Commons gave its approval to the Planning (Agent of Change) Bill, a Private Member's Bill moved by John Spellar MP, which is designed to protect existing music venues from closure or crippling cost arising from the development of new residential properties in their vicinity, especially over questions of noise. The Bill had its first reading in the Commons on 10 January 2018 and is expected to have its second reading on 11 May 2018, the day after the consultation period on the revised draft NPPF closes. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Sam Grange ]]><![CDATA[ Having first announced proposed changes to the National Planning Policy Framework (NPPF) in December 2015, the government's long awaited draft revisions to the NPPF emerged yesterday. This briefing note considers the proposal to introduce into the NPPF specific reference to the 'agent of change' principle, the principle by which a person or business introducing a new land use is responsible for managing the impact of that change. Specific mention of the 'agent of change' principle was contained in the Annex to the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP). The HWP proposed an amendment to the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. It was considered that this proposal would mitigate the risk arising from the imposition of restrictions or the possible closure of existing businesses due to noise and other complaints from the occupiers of new developments. In a statement made by the Ministry of Housing, Communities and Local Government on 18 January 2018, it was confirmed that the NPPF would be clarified to include detailed reference to the 'agent of change' principle. The revised draft NPPF, which has been published for consultation, implements the HWP proposal. In particular, paragraph 180 (contained in Chapter 15: Conserving and enhancing the natural environment) states that planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (including places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. The paragraph goes on to confirm that where an existing business or community facility has effects that could be deemed a statutory nuisance in the light of new development in its vicinity (including changes of use), the applicant (or 'agent of change') should be required to secure suitable mitigation before the development has been completed. If, following the consultation on the revised draft NPPF, the emphasis on the 'agent of change' principle is retained as a feature of national planning policy, the principle will be a material consideration to be taken account of by decision-makers in the determination of planning applications. However, elements of the 'agent of change' principle can already be found in existing policy - paragraph 123 of the current NPPF advises that planning policies and decisions should recognise that existing businesses should not have unreasonable restrictions placed on them because of changes to nearby land uses; and the supporting Planning Practice Guidance indicates that consideration should be given to the potential effects of locating new residential development close to existing businesses that cause noise. Therefore, the proposal to include an explicit reference to the 'agent of change' principle in the NPPF amounts to a change of emphasis rather than the introduction of an alien and entirely novel concept. There is a clear tension between the 'agent of change' principle and other policy objectives, such as housing supply - new development could be hindered if too much emphasis is placed on the principle, thereby giving rise to a detrimental impact on the local economy; and the technical evidence submitted in support of noise-sensitive developments may become the focus of more intense scrutiny by local planning authorities. Furthermore, the use of conditions and/or planning obligations to mitigate noise impacts and other nuisances could increase, which itself may result in knock on effects for scheme viability and the ability for other policy objectives, such as affordable housing targets, to be met. Whilst the consultation on the revised draft NPPF is still to run its course, there does appear to be a growing impetus to afford greater protection to music venues and the night-time economy by putting the 'agent of change' principle on a more formal and clear footing. By way of example, at the turn of the year the House of Commons gave its approval to the Planning (Agent of Change) Bill, a Private Member's Bill moved by John Spellar MP, which is designed to protect existing music venues from closure or crippling cost arising from the development of new residential properties in their vicinity, especially over questions of noise. The Bill had its first reading in the Commons on 10 January 2018 and is expected to have its second reading on 11 May 2018, the day after the consultation period on the revised draft NPPF closes. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{E09782CC-5A0B-46B8-8168-D5C41DD81CF7}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-common-ground-13870.aspxNPPF 2018 - Common Ground Having first announced proposed changes to the National Planning Policy Framework (NPPF) in December 2015, the government's long awaited draft revisions to the NPPF emerged yesterday. This briefing note considers the introduction into the NPPF of a requirement for local planning authorities to prepare a statement of common ground in order to meet 3 primary objectives: (a) increasing certainty and transparency, earlier on in the plan making process, on where effective co-operation is and is not happening; (b) encouraging all local planning authorities to co-operate effectively and seek agreement on strategic cross-boundary issues; and (c) helping local planning authorities demonstrate evidence of co-operation by setting clearer and more consistent expectations as to how co-operation in plan making should be approached and documented. Paragraph 179 of the current NPPF already requires local planning authorities to work collaboratively to ensure that strategic priorities across local boundaries are properly coordinated and to address development requirements which cannot be wholly met within a single local planning authority's administrative boundary. Furthermore, the duty to co-operate, introduced through the Localism Act 2011, was designed to reflect the reality that strategic cross-boundary planning matters can only be effectively tackled when local planning authorities work together. Compliance with the duty is tested at the examination stage of the plan-making process. Whilst there are a number of instances of local planning authorities co-operating effectively to plan for the strategic needs of their wider area, including its housing requirement, there are also examples of where the current framework for co-operation is proving to be less effective, with a number of local plans being withdrawn at the examination stage where compliance with the duty to co-operate has not been demonstrated. Against this background, the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP), particularly paragraphs 1.9 and A.13, set out a plan for more effective joint working where planning issues go beyond individual authority boundaries through the preparation of a statement of common ground. The revised draft NPPF, which has been published for consultation, implements the HWP's plan and also reflects (in Chapter 3: Plan-making) a number of the proposals foreshadowed in the government's 'Planning for the right homes in the right places: consultation proposals' (published in September 2017). In particular, paragraph 29 states that in order to demonstrate effective and on-going joint working, strategic plan-making authorities should prepare and maintain one or more statements of common ground, documenting the cross boundary matters being addressed and progress in cooperating to address these. Paragraph 36 goes on to set out the soundness tests against which local plans are assessed at the examination stage and proposes a strengthening of the 'positively prepared' and 'effective' soundness tests so that local plans are (a) informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated; and (b) based on effective joint working on cross-boundary strategic matters, as evidenced by a statement of common ground. If, following the consultation on the revised draft NPPF, the above-mentioned proposals are retained, co-operation will continue to be tested by virtue of the statutory duty to co-operate when a local plan is submitted for examination. However, the statement of common ground should provide the primary evidence of compliance with the duty to co-operate and establish a clear link between that and the assessment of whether a local plan can be considered sound. As regards guidance on the preparation of statements of common ground, the revised draft NPPF directs the reader to "the approach set out in national planning guidance". We understand that additional draft planning practice guidance is to be published later this week, however, it is anticipated that the approach it advocates will be based upon the government's September 2017 consultation proposals 'Planning for the right homes in the right places'. Matters which we expect to be included are (amongst others) the identification of key cross-boundary strategic planning issues, including housing and infrastructure matters, as well as the geographical area over which to produce the statement of common ground, plus the need to keep statement of common ground regularly updated during the plan-making process to reflect emerging agreements between participating authorities and an individual authority's plan-making progress. Despite having consulted previously upon transitional arrangements for the amended 'positively prepared' and 'effective' soundness tests, and for the introduction of statements of common ground more generally, the government has confirmed that it will not be taking these transitional arrangements forward. The reason given is that the introduction of the statement of common ground as a way of evidencing joint working and the duty to cooperate is not a significant change in practice. Therefore, the change does not demand nor necessitate a transitional period. Whilst the objectives which are driving the amendments proposed to the NPPF concerning the introduction of statements of common ground are commendable and have merit, the extent to which these statements will assist in the examination process will depend upon their effectiveness as both a road-map and an up to date record for cross-boundary co-operation on strategic planning matters. For the resource strapped local planning authority with limited finances, the requirement for a statement of common ground, particularly in the absence of transitional arrangements, may amount to little more than an unwelcome distraction and an additional burden to be shouldered. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Sam Grange ]]><![CDATA[ Having first announced proposed changes to the National Planning Policy Framework (NPPF) in December 2015, the government's long awaited draft revisions to the NPPF emerged yesterday. This briefing note considers the introduction into the NPPF of a requirement for local planning authorities to prepare a statement of common ground in order to meet 3 primary objectives: (a) increasing certainty and transparency, earlier on in the plan making process, on where effective co-operation is and is not happening; (b) encouraging all local planning authorities to co-operate effectively and seek agreement on strategic cross-boundary issues; and (c) helping local planning authorities demonstrate evidence of co-operation by setting clearer and more consistent expectations as to how co-operation in plan making should be approached and documented. Paragraph 179 of the current NPPF already requires local planning authorities to work collaboratively to ensure that strategic priorities across local boundaries are properly coordinated and to address development requirements which cannot be wholly met within a single local planning authority's administrative boundary. Furthermore, the duty to co-operate, introduced through the Localism Act 2011, was designed to reflect the reality that strategic cross-boundary planning matters can only be effectively tackled when local planning authorities work together. Compliance with the duty is tested at the examination stage of the plan-making process. Whilst there are a number of instances of local planning authorities co-operating effectively to plan for the strategic needs of their wider area, including its housing requirement, there are also examples of where the current framework for co-operation is proving to be less effective, with a number of local plans being withdrawn at the examination stage where compliance with the duty to co-operate has not been demonstrated. Against this background, the government's Housing White Paper 'Fixing our Broken Housing Market' (published for consultation in February 2017) (the HWP), particularly paragraphs 1.9 and A.13, set out a plan for more effective joint working where planning issues go beyond individual authority boundaries through the preparation of a statement of common ground. The revised draft NPPF, which has been published for consultation, implements the HWP's plan and also reflects (in Chapter 3: Plan-making) a number of the proposals foreshadowed in the government's 'Planning for the right homes in the right places: consultation proposals' (published in September 2017). In particular, paragraph 29 states that in order to demonstrate effective and on-going joint working, strategic plan-making authorities should prepare and maintain one or more statements of common ground, documenting the cross boundary matters being addressed and progress in cooperating to address these. Paragraph 36 goes on to set out the soundness tests against which local plans are assessed at the examination stage and proposes a strengthening of the 'positively prepared' and 'effective' soundness tests so that local plans are (a) informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated; and (b) based on effective joint working on cross-boundary strategic matters, as evidenced by a statement of common ground. If, following the consultation on the revised draft NPPF, the above-mentioned proposals are retained, co-operation will continue to be tested by virtue of the statutory duty to co-operate when a local plan is submitted for examination. However, the statement of common ground should provide the primary evidence of compliance with the duty to co-operate and establish a clear link between that and the assessment of whether a local plan can be considered sound. As regards guidance on the preparation of statements of common ground, the revised draft NPPF directs the reader to "the approach set out in national planning guidance". We understand that additional draft planning practice guidance is to be published later this week, however, it is anticipated that the approach it advocates will be based upon the government's September 2017 consultation proposals 'Planning for the right homes in the right places'. Matters which we expect to be included are (amongst others) the identification of key cross-boundary strategic planning issues, including housing and infrastructure matters, as well as the geographical area over which to produce the statement of common ground, plus the need to keep statement of common ground regularly updated during the plan-making process to reflect emerging agreements between participating authorities and an individual authority's plan-making progress. Despite having consulted previously upon transitional arrangements for the amended 'positively prepared' and 'effective' soundness tests, and for the introduction of statements of common ground more generally, the government has confirmed that it will not be taking these transitional arrangements forward. The reason given is that the introduction of the statement of common ground as a way of evidencing joint working and the duty to cooperate is not a significant change in practice. Therefore, the change does not demand nor necessitate a transitional period. Whilst the objectives which are driving the amendments proposed to the NPPF concerning the introduction of statements of common ground are commendable and have merit, the extent to which these statements will assist in the examination process will depend upon their effectiveness as both a road-map and an up to date record for cross-boundary co-operation on strategic planning matters. For the resource strapped local planning authority with limited finances, the requirement for a statement of common ground, particularly in the absence of transitional arrangements, may amount to little more than an unwelcome distraction and an additional burden to be shouldered. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{DED197C2-C9D1-467A-8276-FA11889811A7}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-introduction-13841.aspxNPPF 2018 - Introduction The long anticipated draft revised National Planning Policy Framework , NPPF, proposals were published on 5 March 2018. These bring forward proposals to amend existing policy first unveiled in the Housing White Paper and the Planning For The Right Homes In The Right Places consultation last year. In announcing this current round of consultation the Prime Minister announced plans to penalise property developers who do not build homes quickly enough, urging them to "do their duty" to Britain. That comes on the back of comments from Ministers yesterday that the government may also introduce sanctions for so- called Nimby councils; who fail to provide housing against objective housing needs by "fudging" the housing figures. There is already some dissent being reported from Conservative ranks that the proposals will not solve the "housing crisis" and that they will need to be "beefed up," so the responses from developers, Council's and registered social landlords to this current round of consultations will be awaited with interest. This current consultation seeks views on the additional policy proposals which cover a range of matters (including the introduction of starter homes and discounted market homes within the definition of "affordable housing" in Annex 2 of the NPPF). It also sets out a series of further consultation questions. The consultation papers published today comprise: NPPF Consultation Proposals; NPPF Draft Text for Consultation; Draft Planning Practice Guidance for Viability; Housing Delivery Test- draft measurement rule book. In addition, the government has published a separate consultation paper - Supporting Housing Delivery Through Developer Contributions. This document follows on from an earlier announcement in the Autumn Budget 2017. The government's objective here is to seek reforms to the existing system of developer contributions (through CIL and Section 106 Agreements), in the short term which it hopes will benefit the ". local authorities who administer them, developers who pay them and the communities in which development takes place". The consultation period on all of the above the draft proposals and reforms runs until 11.45pm on 10 May 2018. In the meantime the government plans to publish additional draft planning practice guidance relating to the above proposals later this week. Our planning team is reviewing the government's proposals in more detail and will upload a series of briefing notes on specific areas covered in the consultation documents to the Shoosmiths website this week. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Tim Willis ]]><![CDATA[ The long anticipated draft revised National Planning Policy Framework , NPPF, proposals were published on 5 March 2018. These bring forward proposals to amend existing policy first unveiled in the Housing White Paper and the Planning For The Right Homes In The Right Places consultation last year. In announcing this current round of consultation the Prime Minister announced plans to penalise property developers who do not build homes quickly enough, urging them to "do their duty" to Britain. That comes on the back of comments from Ministers yesterday that the government may also introduce sanctions for so- called Nimby councils; who fail to provide housing against objective housing needs by "fudging" the housing figures. There is already some dissent being reported from Conservative ranks that the proposals will not solve the "housing crisis" and that they will need to be "beefed up," so the responses from developers, Council's and registered social landlords to this current round of consultations will be awaited with interest. This current consultation seeks views on the additional policy proposals which cover a range of matters (including the introduction of starter homes and discounted market homes within the definition of "affordable housing" in Annex 2 of the NPPF). It also sets out a series of further consultation questions. The consultation papers published today comprise: NPPF Consultation Proposals; NPPF Draft Text for Consultation; Draft Planning Practice Guidance for Viability; Housing Delivery Test- draft measurement rule book. In addition, the government has published a separate consultation paper - Supporting Housing Delivery Through Developer Contributions. This document follows on from an earlier announcement in the Autumn Budget 2017. The government's objective here is to seek reforms to the existing system of developer contributions (through CIL and Section 106 Agreements), in the short term which it hopes will benefit the ". local authorities who administer them, developers who pay them and the communities in which development takes place". The consultation period on all of the above the draft proposals and reforms runs until 11.45pm on 10 May 2018. In the meantime the government plans to publish additional draft planning practice guidance relating to the above proposals later this week. Our planning team is reviewing the government's proposals in more detail and will upload a series of briefing notes on specific areas covered in the consultation documents to the Shoosmiths website this week. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{D2EBFC5C-E937-4F7F-8AD5-22F176BDBB2E}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-starter-homes-13874.aspxNPPF 2018 - Starter homes On 5 March 2018, the Government began a consultation on the highly anticipated revisions to the National Planning Policy Framework (NPPF). One potentially significant revision is the addition of 'Starter Homes' and 'Discounted Market Sales Housing' to the definition of Affordable Housing within Annex 2 of the NPPF as follows: Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute at the time of plan-preparation or decision-making. Income restrictions should be used to limit a household's eligibility to purchase a starter home to those who have maximum household incomes of £80,000 a year or less (or £90,000 a year or less in Greater London) Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households. This is in line with the commitment given in the Housing White Paper. Starter homes were introduced in the Housing and Planning Act 2016 although the secondary legislation to bring the provisions into force has yet to be enacted. The amendment to the definition of affordable housing broadens the potential tenure mix of affordable housing units to be provided within a proposed development with starter homes and discounted market sales housing capable of being counted towards on-site provision of affordable housing. Discounted market sales housing are often offered in lieu of the 'traditional' on site affordable housing i.e. social rent, affordable rented and shared ownership where a contract with a registered provider cannot be secured due to lack of local interest or market for such units or, in the case of shared ownership dwellings, the restrictions in the Housing (Right to Enfranchisement (Designated Protected Areas) (England) Order 2009, may make such dwellings unappealing to registered providers and/or lenders. The broader definition will assist local planning authorities in delivery against their Affordable Housing targets however consideration will need to be given as to how occupation of such units is to be monitored by local planning authorities. From a developers perspective the expansion of the definition of affordable housing offers greater flexibility in respect of the composition of the affordable housing to be provided and may overcome difficulties in relation to viability, particularly for smaller scale developments. The difficulty will however remain whether such tenures are acceptable to local planning authorities as affordable housing in their administrative area and whether such tenures will meet the local need. It may be that we see starter homes and discounted market sales housing being offered on appeal where affordable housing and/or viability are in dispute. The government has previously mooted the possibility of requiring up to 20% of dwellings within a development to be provided as starter homes but no such requirement is included in the NPPF. Landowners, promoters and developers should, however, bear in mind potential impacts of this change, as affordable housing defined by reference to NPPF is often used in a range of transactional documents including promotion agreements, options, conditional contracts and overage agreements, as well as heads of terms when negotiating deal terms. If NPPF is used in the definition of affordable housing in transactional papers, and that definition includes replacement guidance without any carve outs or conditions, the unintended consequence may be that affordable housing provision will in the future include discounted market sale housing because of NPPF2. This may be fine for many purposes, but the use of affordable housing definitions in documents should be tracked through carefully, to ensure that minimum price payment obligations still work, planning and promotion objectives aren't adversely affected, and overage payments will catch the correct number of dwellings. Alongside the amendments to the NPPF the Government also published a separate consultation paper - Supporting Housing Delivery Through Developer Contributions with the aim of speeding up the planning application process and reducing negotiations in respect of planning obligations. The introduction of Discounted Market Sales Housing to be provided at 20% below local market value may potentially hinder this aim as agreement will need to be reached between the developer and the local planning authority of the appropriate measure for local market value. The consultation on the draft NPPF began on 5 March 2018 and was due to close at 23.45 on Thursday 10 May 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Kara Roberts ]]><![CDATA[ On 5 March 2018, the Government began a consultation on the highly anticipated revisions to the National Planning Policy Framework (NPPF). One potentially significant revision is the addition of 'Starter Homes' and 'Discounted Market Sales Housing' to the definition of Affordable Housing within Annex 2 of the NPPF as follows: Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute at the time of plan-preparation or decision-making. Income restrictions should be used to limit a household's eligibility to purchase a starter home to those who have maximum household incomes of £80,000 a year or less (or £90,000 a year or less in Greater London) Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households. This is in line with the commitment given in the Housing White Paper. Starter homes were introduced in the Housing and Planning Act 2016 although the secondary legislation to bring the provisions into force has yet to be enacted. The amendment to the definition of affordable housing broadens the potential tenure mix of affordable housing units to be provided within a proposed development with starter homes and discounted market sales housing capable of being counted towards on-site provision of affordable housing. Discounted market sales housing are often offered in lieu of the 'traditional' on site affordable housing i.e. social rent, affordable rented and shared ownership where a contract with a registered provider cannot be secured due to lack of local interest or market for such units or, in the case of shared ownership dwellings, the restrictions in the Housing (Right to Enfranchisement (Designated Protected Areas) (England) Order 2009, may make such dwellings unappealing to registered providers and/or lenders. The broader definition will assist local planning authorities in delivery against their Affordable Housing targets however consideration will need to be given as to how occupation of such units is to be monitored by local planning authorities. From a developers perspective the expansion of the definition of affordable housing offers greater flexibility in respect of the composition of the affordable housing to be provided and may overcome difficulties in relation to viability, particularly for smaller scale developments. The difficulty will however remain whether such tenures are acceptable to local planning authorities as affordable housing in their administrative area and whether such tenures will meet the local need. It may be that we see starter homes and discounted market sales housing being offered on appeal where affordable housing and/or viability are in dispute. The government has previously mooted the possibility of requiring up to 20% of dwellings within a development to be provided as starter homes but no such requirement is included in the NPPF. Landowners, promoters and developers should, however, bear in mind potential impacts of this change, as affordable housing defined by reference to NPPF is often used in a range of transactional documents including promotion agreements, options, conditional contracts and overage agreements, as well as heads of terms when negotiating deal terms. If NPPF is used in the definition of affordable housing in transactional papers, and that definition includes replacement guidance without any carve outs or conditions, the unintended consequence may be that affordable housing provision will in the future include discounted market sale housing because of NPPF2. This may be fine for many purposes, but the use of affordable housing definitions in documents should be tracked through carefully, to ensure that minimum price payment obligations still work, planning and promotion objectives aren't adversely affected, and overage payments will catch the correct number of dwellings. Alongside the amendments to the NPPF the Government also published a separate consultation paper - Supporting Housing Delivery Through Developer Contributions with the aim of speeding up the planning application process and reducing negotiations in respect of planning obligations. The introduction of Discounted Market Sales Housing to be provided at 20% below local market value may potentially hinder this aim as agreement will need to be reached between the developer and the local planning authority of the appropriate measure for local market value. The consultation on the draft NPPF began on 5 March 2018 and was due to close at 23.45 on Thursday 10 May 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{F35FD35F-FB36-427C-B250-BF07CA44B6FA}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-upwards-extensions-13857.aspxNPPF 2018 - Upwards extensions The proposed amendments to the NPPF provide backing for upward extensions. This is designed to make use of the airspace above existing buildings where here is scope to extend them. An earlier consultation on this proposal for London had contemplated the possibility of permitted development rights or local development orders but the preferred approach was identified as planning policies to support this type of development. In response to that London based consultation the government decided that a change in the NPPF to support the principle was the best way forward. This change to the NPPF is not a permitted development right and should not be seen as an automatic yes. It does however give support in principle to extensions above existing residential and commercial premises for new homes. This is something that could be applied for anyway so it does not introduce a new concept, but it does confirm that such proposals for new homes should be supported as long as the extension would not reach beyond the adjoining roof lines and would be in keeping with the overall street scene and are well designed and safe access can be achieved. This approach is likely to be welcomed by the industry in principle as it supports the type of innovative approach that is required to find space for additional housing in highly developed areas. There will however be complications with these proposals with the most obvious one being viability. Some sites will undoubtedly be more complicated than others and this could lead to viability issues. How local authorities will treat these sites with regard to CIL and planning obligations will undoubtedly therefore have an impact on their deliverability. As with the other policies promoting higher density development, the impact of this type of development on existing infrastructure will need to be considered carefully to ensure that acceptable developments can take place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Paul Weeks ]]><![CDATA[ The proposed amendments to the NPPF provide backing for upward extensions. This is designed to make use of the airspace above existing buildings where here is scope to extend them. An earlier consultation on this proposal for London had contemplated the possibility of permitted development rights or local development orders but the preferred approach was identified as planning policies to support this type of development. In response to that London based consultation the government decided that a change in the NPPF to support the principle was the best way forward. This change to the NPPF is not a permitted development right and should not be seen as an automatic yes. It does however give support in principle to extensions above existing residential and commercial premises for new homes. This is something that could be applied for anyway so it does not introduce a new concept, but it does confirm that such proposals for new homes should be supported as long as the extension would not reach beyond the adjoining roof lines and would be in keeping with the overall street scene and are well designed and safe access can be achieved. This approach is likely to be welcomed by the industry in principle as it supports the type of innovative approach that is required to find space for additional housing in highly developed areas. There will however be complications with these proposals with the most obvious one being viability. Some sites will undoubtedly be more complicated than others and this could lead to viability issues. How local authorities will treat these sites with regard to CIL and planning obligations will undoubtedly therefore have an impact on their deliverability. As with the other policies promoting higher density development, the impact of this type of development on existing infrastructure will need to be considered carefully to ensure that acceptable developments can take place. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{A46D9863-5E65-44EB-B801-E214E2371D50}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-densities-13861.aspxNPPF 2018 - Densities The new draft NPPF introduces a new Chapter 11 - "Making effective use of land". This chapter sets out a range of requirements that policies should include in order to promote the effective use of land. It is clearly linked to finding more ways to increase the delivery of homes through brownfield land and it states that "Strategic plans should contain a clear strategy for accommodating objectively assessed needs, in a way that makes as much use as possible of previously developed or brownfield land". This requirement is consistent with the stated aims of increasing housing and the protection of the greenbelt and will mean that local authorities will have to demonstrate that all of the land in their area has been properly assessed when their policies are considered. The chapter includes the expected proposal to support higher density housing where required. In addition to these requirement, the chapter sets some other positive policy requirements to support the principle of making effective use of land. These include both greenfield and brownfield land and are aimed at ensuring that the right development takes place at the most suitable locations. They include keeping the allocated use of land under review to see if an alternative use would be better where development does not come forward; giving substantial weight to the value of using brownfield land; promote and support the development of under-utilised land and buildings (especially to meet identified housing need where land supply is constrained); recognising what roles undeveloped land could play; encouraging mixed uses and habitat creation to achieve net environmental gains; taking a pro-active role in identifying and bringing forward land suitable for public needs (such as sites in public ownership); and Making more effective use of land already providing community services. Whilst these proposals mention both brownfield and greenfield land, it seems that there is a real focus on ensuring that all brownfield space is considered as the first option to minimise the need for greenfield development. Achieving appropriate densities - The draft NPPF includes a changed approach to determining appropriate densities for new development. The existing NPPF requires authorities to set out their own approach to housing density to reflect local circumstances. The revised NPPF proposes that plans and decisions should support development that makes efficient use of land, taking into account issues such as: identified housing need; market conditions and viability; availability and capacity of infrastructure; the desirability of maintaining existing character compared to regeneration/change; and the importance of well-designed attractive places. It is identified that where there is either an existing or anticipated shortage of housing both policies and decisions should avoid homes being built in low densities to ensure optimal use of land. Where there is such a shortage: plans should contain policies to optimise the use of land in the area, including minimum densities for areas where there is good public transport. It is expected that these will seek an uplift on existing densities in those areas, unless there are strong reasons otherwise. These policies will be tested robustly at examination; use of minimum density standards should be considered for other areas, with the possibility of a range of standards linked to the accessibility of the areas covered by the plan; applications should be refused where they fail to make efficient use of land taking into account the policies in the framework and when considering applications for housing, authorities should take a flexible approach in applying policies or guidance relating to daylight and sunlight. These proposals place great importance of first identifying the objectively assed need in the area and the wider goal of achieving optimum efficiency of land use. Development at higher densities will inevitably provide less on site infrastructure and therefore place greater pressure on existing infrastructure. It seems that the assessment of existing capacity and finding solutions to make these developments feasible will be critical if higher density schemes are to be successful. The effective use of planning obligations and CIL will be essential although higher density schemes could in theory create the higher revenues needed to provide and or improve the necessary infrastructure. As with the policy requirements being introduced to ensure effective use of land, the proposals for greater density could also been seen as further protection mechanism for the green belt. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Paul Weeks ]]><![CDATA[ The new draft NPPF introduces a new Chapter 11 - "Making effective use of land". This chapter sets out a range of requirements that policies should include in order to promote the effective use of land. It is clearly linked to finding more ways to increase the delivery of homes through brownfield land and it states that "Strategic plans should contain a clear strategy for accommodating objectively assessed needs, in a way that makes as much use as possible of previously developed or brownfield land". This requirement is consistent with the stated aims of increasing housing and the protection of the greenbelt and will mean that local authorities will have to demonstrate that all of the land in their area has been properly assessed when their policies are considered. The chapter includes the expected proposal to support higher density housing where required. In addition to these requirement, the chapter sets some other positive policy requirements to support the principle of making effective use of land. These include both greenfield and brownfield land and are aimed at ensuring that the right development takes place at the most suitable locations. They include keeping the allocated use of land under review to see if an alternative use would be better where development does not come forward; giving substantial weight to the value of using brownfield land; promote and support the development of under-utilised land and buildings (especially to meet identified housing need where land supply is constrained); recognising what roles undeveloped land could play; encouraging mixed uses and habitat creation to achieve net environmental gains; taking a pro-active role in identifying and bringing forward land suitable for public needs (such as sites in public ownership); and Making more effective use of land already providing community services. Whilst these proposals mention both brownfield and greenfield land, it seems that there is a real focus on ensuring that all brownfield space is considered as the first option to minimise the need for greenfield development. Achieving appropriate densities - The draft NPPF includes a changed approach to determining appropriate densities for new development. The existing NPPF requires authorities to set out their own approach to housing density to reflect local circumstances. The revised NPPF proposes that plans and decisions should support development that makes efficient use of land, taking into account issues such as: identified housing need; market conditions and viability; availability and capacity of infrastructure; the desirability of maintaining existing character compared to regeneration/change; and the importance of well-designed attractive places. It is identified that where there is either an existing or anticipated shortage of housing both policies and decisions should avoid homes being built in low densities to ensure optimal use of land. Where there is such a shortage: plans should contain policies to optimise the use of land in the area, including minimum densities for areas where there is good public transport. It is expected that these will seek an uplift on existing densities in those areas, unless there are strong reasons otherwise. These policies will be tested robustly at examination; use of minimum density standards should be considered for other areas, with the possibility of a range of standards linked to the accessibility of the areas covered by the plan; applications should be refused where they fail to make efficient use of land taking into account the policies in the framework and when considering applications for housing, authorities should take a flexible approach in applying policies or guidance relating to daylight and sunlight. These proposals place great importance of first identifying the objectively assed need in the area and the wider goal of achieving optimum efficiency of land use. Development at higher densities will inevitably provide less on site infrastructure and therefore place greater pressure on existing infrastructure. It seems that the assessment of existing capacity and finding solutions to make these developments feasible will be critical if higher density schemes are to be successful. The effective use of planning obligations and CIL will be essential although higher density schemes could in theory create the higher revenues needed to provide and or improve the necessary infrastructure. As with the policy requirements being introduced to ensure effective use of land, the proposals for greater density could also been seen as further protection mechanism for the green belt. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{1B48B811-DA93-4578-BB33-87F1310ACE7E}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-high-level-13864.aspxNPPF 2018 - High Level For housing the changes are generally as expected with the new Housing Delivery Test strengthening the need to show not only sufficient deliverable sites to meet identified housing need but also demonstrate that those homes are actually being delivered. This is likely to be welcomed by the development industry and provides a much more objective measurement of when there should be a titled balance applied in favour of development proposals, moving away from what had become a relatively easy exercise on showing that there were sites within the local planning authority's area that were capable of delivering the required housing to a much more objective and realistic requirement that the delivery of those dwellings must also be demonstrated. To an extent this reflects the way that the arguments have been put forward on these issues, (particularly after the St Modwen Court of Appeal judgement) but it also brings in a much needed sense of realism to the application of the tilted balance. Hand in hand with this however is a requirement for local planning authorities to consider imposing a planning condition that development must be begun earlier than the default 3 years. The ability to impose such conditions already exists but expect this policy to be used regularly albeit with the requirement that any shorter period for implementation should not threaten the deliverability or viability of the development. There is, through a number of policies, an effective requirement for local plans to be up to date, an extension of the Secretary of States recent high profile threats to intervene where no up to date plan is in place. The tilted balance is to change effectively negating part of the Supreme Court decision in Suffolk Coastal. The changes (if they become effective) mean that it is applied if: All policies that that "are most important for determining the application are out of date". Out of date means where a five year supply of deliverable sites (no change to the use of the term deliverable but those sites must include 20% that are of half hectare or less) cannot be identified or (this is new) the Housing Delivery Test indicates that delivery of housing has been substantially below that required over the previous three years; The five year period is reduced (in line with, but with some important changes to, the Witten Ministerial Statement) to three years. This will however only apply where there is a recent neighbourhood plan that has passed referendum two years or less before the decision is made, that plan allocates enough housing to meet its need as identified by the local panning authority and housing delivery was at a least 45% measured against the Housing Delivery Test. The assessment of housing need and the buffer to be applied has been tweaked by the addition of a new 10% buffer where: there is an annual position statement. There is a need to engage developers and others who have an impact on delivery and that this considered (no detail on how it is to be considered) by the Secretary of State with any recommendations incorporated in it; or that five year supply is demonstrated in a local plan that has been adopted in the last 18 months. There is not any express brownfield first policy but the list of developments that are not to be regarded as inappropriate in the green belt now includes limited infilling or the partial or complete redevelopment of previously developed land where that contributes to meeting an identified affordable housing need. The existing protection given to designated land such as Areas of Outstanding Natural Beauty (ONB) remains as does the distinction between where any development proposals are major and otherwise when there is a requirement to give great weight to observing those areas landscape and scenic beauty. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[ For housing the changes are generally as expected with the new Housing Delivery Test strengthening the need to show not only sufficient deliverable sites to meet identified housing need but also demonstrate that those homes are actually being delivered. This is likely to be welcomed by the development industry and provides a much more objective measurement of when there should be a titled balance applied in favour of development proposals, moving away from what had become a relatively easy exercise on showing that there were sites within the local planning authority's area that were capable of delivering the required housing to a much more objective and realistic requirement that the delivery of those dwellings must also be demonstrated. To an extent this reflects the way that the arguments have been put forward on these issues, (particularly after the St Modwen Court of Appeal judgement) but it also brings in a much needed sense of realism to the application of the tilted balance. Hand in hand with this however is a requirement for local planning authorities to consider imposing a planning condition that development must be begun earlier than the default 3 years. The ability to impose such conditions already exists but expect this policy to be used regularly albeit with the requirement that any shorter period for implementation should not threaten the deliverability or viability of the development. There is, through a number of policies, an effective requirement for local plans to be up to date, an extension of the Secretary of States recent high profile threats to intervene where no up to date plan is in place. The tilted balance is to change effectively negating part of the Supreme Court decision in Suffolk Coastal. The changes (if they become effective) mean that it is applied if: All policies that that "are most important for determining the application are out of date". Out of date means where a five year supply of deliverable sites (no change to the use of the term deliverable but those sites must include 20% that are of half hectare or less) cannot be identified or (this is new) the Housing Delivery Test indicates that delivery of housing has been substantially below that required over the previous three years; The five year period is reduced (in line with, but with some important changes to, the Witten Ministerial Statement) to three years. This will however only apply where there is a recent neighbourhood plan that has passed referendum two years or less before the decision is made, that plan allocates enough housing to meet its need as identified by the local panning authority and housing delivery was at a least 45% measured against the Housing Delivery Test. The assessment of housing need and the buffer to be applied has been tweaked by the addition of a new 10% buffer where: there is an annual position statement. There is a need to engage developers and others who have an impact on delivery and that this considered (no detail on how it is to be considered) by the Secretary of State with any recommendations incorporated in it; or that five year supply is demonstrated in a local plan that has been adopted in the last 18 months. There is not any express brownfield first policy but the list of developments that are not to be regarded as inappropriate in the green belt now includes limited infilling or the partial or complete redevelopment of previously developed land where that contributes to meeting an identified affordable housing need. The existing protection given to designated land such as Areas of Outstanding Natural Beauty (ONB) remains as does the distinction between where any development proposals are major and otherwise when there is a requirement to give great weight to observing those areas landscape and scenic beauty. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{3B8AC839-DAE2-4316-81CD-F32BE8C1ED6B}https://www.shoosmiths.co.uk/client-resources/legal-updates/nppf-2018-housing-delivery-tests-13852.aspxNPPF 2018 - housing delivery tests On 5 March 2018, the Government began a consultation on the highly anticipated revisions to the National Planning Policy Framework. Amongst the most significant proposals for reform is the proposed introduction of a "standard method" for calculating local housing need and a "Housing Delivery Test", which will affect both the way in which local plans are prepared and the manner in which planning applications are determined. The requirement on local authorities to adopt the Standard Method is set out in paragraph 61 of the draft NPPF. This requires strategic plans to be based upon a local housing need assessment, conducted using the standard method "unless there are exceptional circumstances that justify an alternative approach which also reflects current and future demographic trends and market signals." The method itself will be set out in the online national planning guidance. This will also be put out to consultation, but (at the time of writing) has not yet been published. However, it is anticipated that it will align closely with the proposals set out in the Governments previous consultation paper, planning for the right homes in the right places published in September 2017. In that publication, a three step approach to calculating need was proposed: Step 1 is to establish a baseline from the Office for National Statistics projections for numbers of households in each local authority area; Step 2 is to adjust that figure to take account of market signals by reference to median affordability ratios (comparing median house prices to median earnings) published by the Office for National Statistics; Step 3 is to impose a cap on the level of any increase, which would be either: 40% above the annual requirement figure in the current local plan (if it is less than 5 years old); or 40% above the projected household growth figure based on the Office for National Statistics household projections. A table published alongside the September 2017 consultation paper indicated that the adoption of the Standard Method would have a potentially significant impact (both positive and negative) on the calculation of housing need across the country. Under the revised NPPF (paragraph 74), local authorities will be required to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years' worth of housing against their housing requirement (plus a buffer), or against their local housing need where the strategic plan is more than five years old. In addition, a new Housing Delivery Test is introduced to measure each local authority's performance in delivering new houses. The Test would result in a figure expressed as a percentage of the total net homes delivered against the total number of homes required over the previous three years. If the Housing Delivery Test shows that there has been significant under delivery of housing over the previous three years (in this context meaning less than 85%), the local authority must include a 20% buffer in its supply of specific deliverable sites in order to achieve the required five years supply. In an area in which the local authority cannot demonstrate a five-year supply of deliverable housing sites or where the Housing Delivery Test indicates that delivery of housing has been substantially below (that is, below 75%) the housing requirement over the previous three years, paragraph 75 and paragraph 11d of the draft NPPF dictate that the presumption in favour of sustainable development will apply to any application for housing development. This means that planning permission should be granted unless: The application of policies in the NPPF that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole. An exception to this will apply in any area which is covered by a Neighbourhood Plan which is less than 2 years old. In those areas, paragraph 14 of the draft NPPF dictates that "the adverse impact of allowing development that conflicts with [the Neighbourhood Plan] is likely to significantly and demonstrably outweigh the benefits where: paragraph 75 of the NPPF applies; and The local planning authority has at least a three year supply of deliverable housing sites (against its five year housing supply requirement), and its housing delivery was at least 45% of that required over the previous three years. The consultation on the draft NPPF began on 5 March 2018 and will close at 23.45 on Thursday 10 May 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 06 Mar 2018 00:00:00 Z<![CDATA[Matthew Stimson ]]><![CDATA[ On 5 March 2018, the Government began a consultation on the highly anticipated revisions to the National Planning Policy Framework. Amongst the most significant proposals for reform is the proposed introduction of a "standard method" for calculating local housing need and a "Housing Delivery Test", which will affect both the way in which local plans are prepared and the manner in which planning applications are determined. The requirement on local authorities to adopt the Standard Method is set out in paragraph 61 of the draft NPPF. This requires strategic plans to be based upon a local housing need assessment, conducted using the standard method "unless there are exceptional circumstances that justify an alternative approach which also reflects current and future demographic trends and market signals." The method itself will be set out in the online national planning guidance. This will also be put out to consultation, but (at the time of writing) has not yet been published. However, it is anticipated that it will align closely with the proposals set out in the Governments previous consultation paper, planning for the right homes in the right places published in September 2017. In that publication, a three step approach to calculating need was proposed: Step 1 is to establish a baseline from the Office for National Statistics projections for numbers of households in each local authority area; Step 2 is to adjust that figure to take account of market signals by reference to median affordability ratios (comparing median house prices to median earnings) published by the Office for National Statistics; Step 3 is to impose a cap on the level of any increase, which would be either: 40% above the annual requirement figure in the current local plan (if it is less than 5 years old); or 40% above the projected household growth figure based on the Office for National Statistics household projections. A table published alongside the September 2017 consultation paper indicated that the adoption of the Standard Method would have a potentially significant impact (both positive and negative) on the calculation of housing need across the country. Under the revised NPPF (paragraph 74), local authorities will be required to identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years' worth of housing against their housing requirement (plus a buffer), or against their local housing need where the strategic plan is more than five years old. In addition, a new Housing Delivery Test is introduced to measure each local authority's performance in delivering new houses. The Test would result in a figure expressed as a percentage of the total net homes delivered against the total number of homes required over the previous three years. If the Housing Delivery Test shows that there has been significant under delivery of housing over the previous three years (in this context meaning less than 85%), the local authority must include a 20% buffer in its supply of specific deliverable sites in order to achieve the required five years supply. In an area in which the local authority cannot demonstrate a five-year supply of deliverable housing sites or where the Housing Delivery Test indicates that delivery of housing has been substantially below (that is, below 75%) the housing requirement over the previous three years, paragraph 75 and paragraph 11d of the draft NPPF dictate that the presumption in favour of sustainable development will apply to any application for housing development. This means that planning permission should be granted unless: The application of policies in the NPPF that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the NPPF taken as a whole. An exception to this will apply in any area which is covered by a Neighbourhood Plan which is less than 2 years old. In those areas, paragraph 14 of the draft NPPF dictates that "the adverse impact of allowing development that conflicts with [the Neighbourhood Plan] is likely to significantly and demonstrably outweigh the benefits where: paragraph 75 of the NPPF applies; and The local planning authority has at least a three year supply of deliverable housing sites (against its five year housing supply requirement), and its housing delivery was at least 45% of that required over the previous three years. The consultation on the draft NPPF began on 5 March 2018 and will close at 23.45 on Thursday 10 May 2018. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{33397E8C-8560-4859-96AD-A45C844E4FBD}https://www.shoosmiths.co.uk/news/press-releases/hotel-conversions-viable-in-current-market-13750.aspxHotel conversions viable in the current market, conference hears Experts from the world of hotel conversions gathered in London today (Thursday) to talk about the challenges and opportunities facing the sector in the coming months and years. Download hi-res image Ed John Ed John, a real estate partner in Shoosmiths' hotel practice, spoke at the event hosted by Colliers International and talks you through the day's discussions. He writes: Introducing the Shoosmiths and Colliers hotel event Marc Finney, head of hotels and resorts consulting at Colliers, explained that, following the crash until recent times with oversupply in the market, it was cheaper to buy an existing hotel than to build one. That has now changed and increasingly it made economic sense to develop rather than buy a hotel - and the lack of supply and vacant sites meant increasingly those developments were conversions rather than new build. Dexter Moren, the founding director of Dexter Moren Associates, was interviewed on the 25 years since he founded his leading hotel architecture practice. He emphasised the importance of designing hotels which complemented their location and which stimulated interaction with local people. Africa was undersupplied with quality hotels and, Dexter said, was "the new China". Ben Turner, a corporate partner in Shoosmiths LLP's hotel practice, highlighted the need to tackle due diligence on conversions differently. The lack of an existing operational business for conversion properties means that investors need to look more closely at planning restrictions/permissions, valuation advice, market analysis and the capabilities of the development team. Particular care, he said, needed to be taken from the outset to ensure a viable investment exit strategy. Paul Cook, head of Technology at ISG, explained the benefits in terms of security and resilience of ensuring that technology was an integral part of a hotel's systems - a truly "smart" hotel - rather than a patchwork of systems stitched together in a haphazard way. Colliers' head of the UK Regeneration, Jonathan Manns, explained how the planning process to convert a hotel, if approached properly, was about "winning hearts and minds" rather than "fighting a battle". I spoke about shedding light on some recent changes to the law such as the Electronic Communications Code, Minimum Energy Efficiency Standards and the Supreme Court case of Newbigin v S J &amp; J Monk on valuation for business rates. Two directors of Colliers' specialist hospitality asset management practice, Ben Godon and Allan Davidson, illustrated the need to choose the right operating model and brand when converting a building into a hotel. Andrew Sangster, editor of Hotel Analyst, chaired a panel of industry leaders on the challenges of hotel conversion and redevelopment, comprising: Shona Pushpaharan, head of hotels at Clydesdale and Yorkshire Bank Clive Hillier, head of hospitality asset management at Colliers International Sabina Wyss di Corrado, Director of Acquisitions &amp; Development at PPHE Adela Cristea Director Development UK &amp; Ireland at Carlson Rezidor Hotel Group for Radisson They agreed that operators and financiers were now willing to show a measure of flexibility on hotels operated under a lease, management or franchise. Delegates heard that development finance is readily available for the right hotel properties and the way in which finance will be assessed depends on the operating model. Real estate investors are now looking at the return from hotels very much in the same way as they do from office, retail and leisure assets, particularly in city centre locations like London, Edinburgh and Manchester.Thu, 25 Jan 2018 00:00:00 Z<![CDATA[Ed John ]]><![CDATA[ Experts from the world of hotel conversions gathered in London today (Thursday) to talk about the challenges and opportunities facing the sector in the coming months and years. Download hi-res image Ed John Ed John, a real estate partner in Shoosmiths' hotel practice, spoke at the event hosted by Colliers International and talks you through the day's discussions. He writes: Introducing the Shoosmiths and Colliers hotel event Marc Finney, head of hotels and resorts consulting at Colliers, explained that, following the crash until recent times with oversupply in the market, it was cheaper to buy an existing hotel than to build one. That has now changed and increasingly it made economic sense to develop rather than buy a hotel - and the lack of supply and vacant sites meant increasingly those developments were conversions rather than new build. Dexter Moren, the founding director of Dexter Moren Associates, was interviewed on the 25 years since he founded his leading hotel architecture practice. He emphasised the importance of designing hotels which complemented their location and which stimulated interaction with local people. Africa was undersupplied with quality hotels and, Dexter said, was "the new China". Ben Turner, a corporate partner in Shoosmiths LLP's hotel practice, highlighted the need to tackle due diligence on conversions differently. The lack of an existing operational business for conversion properties means that investors need to look more closely at planning restrictions/permissions, valuation advice, market analysis and the capabilities of the development team. Particular care, he said, needed to be taken from the outset to ensure a viable investment exit strategy. Paul Cook, head of Technology at ISG, explained the benefits in terms of security and resilience of ensuring that technology was an integral part of a hotel's systems - a truly "smart" hotel - rather than a patchwork of systems stitched together in a haphazard way. Colliers' head of the UK Regeneration, Jonathan Manns, explained how the planning process to convert a hotel, if approached properly, was about "winning hearts and minds" rather than "fighting a battle". I spoke about shedding light on some recent changes to the law such as the Electronic Communications Code, Minimum Energy Efficiency Standards and the Supreme Court case of Newbigin v S J &amp; J Monk on valuation for business rates. Two directors of Colliers' specialist hospitality asset management practice, Ben Godon and Allan Davidson, illustrated the need to choose the right operating model and brand when converting a building into a hotel. Andrew Sangster, editor of Hotel Analyst, chaired a panel of industry leaders on the challenges of hotel conversion and redevelopment, comprising: Shona Pushpaharan, head of hotels at Clydesdale and Yorkshire Bank Clive Hillier, head of hospitality asset management at Colliers International Sabina Wyss di Corrado, Director of Acquisitions &amp; Development at PPHE Adela Cristea Director Development UK &amp; Ireland at Carlson Rezidor Hotel Group for Radisson They agreed that operators and financiers were now willing to show a measure of flexibility on hotels operated under a lease, management or franchise. Delegates heard that development finance is readily available for the right hotel properties and the way in which finance will be assessed depends on the operating model. Real estate investors are now looking at the return from hotels very much in the same way as they do from office, retail and leisure assets, particularly in city centre locations like London, Edinburgh and Manchester.]]>{7ED65445-763D-4BC4-B4DD-5160BE421B41}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-planning-scotland-bill-update-13718.aspxThe Planning (Scotland) Bill Update The Planning (Scotland) Bill (the 'Bill'), published at the end of 2017, outlined a number of changes to the current legislation in Scotland. The Bill therefore contains quite far-reaching reforms both to the system of plan making and decision taking in Scotland and should be of interest to local authorities, developers and community groups with an interest in development. However, many of the measures proposed in the Bill lack detail and will require further regulations to be made before they take effect. Local Place Plans Local Place Plans ('LPPs') are similar to the Neighbourhood Plans introduced in England under the Localism Act 2011. They will be a means by which a 'Community Body' can make proposals for the development and use of land within a specified, local area. 'Community Body' is defined as either: (a) a community-controlled body within the definition given in section 19 of the Community Empowerment (Scotland) Act 2015; or (b) a community council established in accordance with Part 4 of the Local Government (Scotland) Act 1973. According to the Policy Memorandum, the objectives of LPPs are to be a community-led, rather than procedure-led, approach to plans that do not fall on type of community organisation to prepare; recognising different approaches appropriate for each individual area. The overarching objective is to allow the community the ability to express its view on development within their own area. LLPs must have regard to the local development plan for the area to which the Local Place Plan relates and the National Planning Framework. Interestingly, though, the Bill details that preparations of, or amendments to, the Local Development Plans must also have regard to LPPs and it does not state which has precedence. Infrastructure Levy In relation to the proposed Infrastucture Levy ('IL'), the Bill does not yet set out who is liable, when liability arises, which developments will be liable and what amounts will be payable; although it is envisaged that these may be similar to the current Community Infrastructure Levy legislation in England and Wales, with the exceptions noted below. The provisions below are all preceded by the word 'may', so it stands to reason that these provisions may or may not be included in the final statute. There are provisions for local authorities (note: the bill details local authorities rather than planning authorities) to: waive or discount the IL incurred in development within their area; collect and/or enforce payments of sums due; charge a financial penalty in respect of late payments; and can order the cessation of development until the IL and any associated penalties have been paid (it will be an offence to continue with the development if ordered to stop by the local authority). In addition to the above, there are provisions within the Bill to: make it an offence to evade or reduce liability by withholding information, providing false or misleading information, obstructing the investigation of liability for IL and causing a person to do any of the aforementioned; defer the granting of planning permission until the IL has been paid (this is different from the Community Infrastructure Levy seen in England and Wales, which allows for the local planning authority to stop development but not withhold planning permission); allow for partial or full repayment of IL and/or any associated penalties with or without interest; establish an appeal process against decisions as to whether IL is payable and/or what the amount payable is; determine expenditure of IL monies and transfer to Scottish Ministers, along with regulations as to how the money ought to be spent; and allow the IL to run alongside and in addition to contributions required under Section 75 of the 1997 Act and Section 53 of the Road (Scotland) Act 1984 (highways agreements) - another parallel to the system in England and Wales where CIL is payable in addition to Section 106 obligations. Summary The introduction of Neighbourhood Plans and the Community Infrastructure Levy in England has not been without controversy or complication. Take up of CIL in England has been far from universal. The regulations governing CIL have undergone several revisions and, six years on since the primary legislation came into force, further proposals to reform CIL are currently undergoing consultation. It remains to be seen whether the proposed Infrastructure Levy will face similar teething problems in Scotland. The devil will be in the detail of the regulations that must follow in the event that the Bill is passed. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 16 Jan 2018 00:00:00 Z<![CDATA[Kirsten Hewson Matthew Stimson ]]><![CDATA[ The Planning (Scotland) Bill (the 'Bill'), published at the end of 2017, outlined a number of changes to the current legislation in Scotland. The Bill therefore contains quite far-reaching reforms both to the system of plan making and decision taking in Scotland and should be of interest to local authorities, developers and community groups with an interest in development. However, many of the measures proposed in the Bill lack detail and will require further regulations to be made before they take effect. Local Place Plans Local Place Plans ('LPPs') are similar to the Neighbourhood Plans introduced in England under the Localism Act 2011. They will be a means by which a 'Community Body' can make proposals for the development and use of land within a specified, local area. 'Community Body' is defined as either: (a) a community-controlled body within the definition given in section 19 of the Community Empowerment (Scotland) Act 2015; or (b) a community council established in accordance with Part 4 of the Local Government (Scotland) Act 1973. According to the Policy Memorandum, the objectives of LPPs are to be a community-led, rather than procedure-led, approach to plans that do not fall on type of community organisation to prepare; recognising different approaches appropriate for each individual area. The overarching objective is to allow the community the ability to express its view on development within their own area. LLPs must have regard to the local development plan for the area to which the Local Place Plan relates and the National Planning Framework. Interestingly, though, the Bill details that preparations of, or amendments to, the Local Development Plans must also have regard to LPPs and it does not state which has precedence. Infrastructure Levy In relation to the proposed Infrastucture Levy ('IL'), the Bill does not yet set out who is liable, when liability arises, which developments will be liable and what amounts will be payable; although it is envisaged that these may be similar to the current Community Infrastructure Levy legislation in England and Wales, with the exceptions noted below. The provisions below are all preceded by the word 'may', so it stands to reason that these provisions may or may not be included in the final statute. There are provisions for local authorities (note: the bill details local authorities rather than planning authorities) to: waive or discount the IL incurred in development within their area; collect and/or enforce payments of sums due; charge a financial penalty in respect of late payments; and can order the cessation of development until the IL and any associated penalties have been paid (it will be an offence to continue with the development if ordered to stop by the local authority). In addition to the above, there are provisions within the Bill to: make it an offence to evade or reduce liability by withholding information, providing false or misleading information, obstructing the investigation of liability for IL and causing a person to do any of the aforementioned; defer the granting of planning permission until the IL has been paid (this is different from the Community Infrastructure Levy seen in England and Wales, which allows for the local planning authority to stop development but not withhold planning permission); allow for partial or full repayment of IL and/or any associated penalties with or without interest; establish an appeal process against decisions as to whether IL is payable and/or what the amount payable is; determine expenditure of IL monies and transfer to Scottish Ministers, along with regulations as to how the money ought to be spent; and allow the IL to run alongside and in addition to contributions required under Section 75 of the 1997 Act and Section 53 of the Road (Scotland) Act 1984 (highways agreements) - another parallel to the system in England and Wales where CIL is payable in addition to Section 106 obligations. Summary The introduction of Neighbourhood Plans and the Community Infrastructure Levy in England has not been without controversy or complication. Take up of CIL in England has been far from universal. The regulations governing CIL have undergone several revisions and, six years on since the primary legislation came into force, further proposals to reform CIL are currently undergoing consultation. It remains to be seen whether the proposed Infrastructure Levy will face similar teething problems in Scotland. The devil will be in the detail of the regulations that must follow in the event that the Bill is passed. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{1D366968-8F7A-4550-AAF1-2491186EEC95}https://www.shoosmiths.co.uk/client-resources/legal-updates/case-law-update-13715.aspxCase law update Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (Scotland) [2017] UKSC 66 In this landmark decision handed down on 25 October 2017, the Supreme Court clarifies the law governing planning obligations made under Section 75 of the Town and Country Planning (Scotland) Act 1997. The Court finds that it is unlawful for local authorities to require financial contributions to be made towards pooled funds for infrastructure which is unconnected to the development of a particular site. The decision will have a significant bearing on planning and the negotiation of planning obligations in Scotland. Background Aberdeen City and Shire Strategic Development Planning Authority (the 'Authority') sought to establish a pooled fund to facilitate significant transport infrastructure improvements, which they considered necessary to support development generally in their area. The Authority adopted Supplementary Guidance to implement a Strategic Transport Fund (the 'Fund') within its Strategic Development Plan. Elsick Development Company Limited ('Elsick') were proposing to develop approximately 4,000 houses together with commercial, retail and community facilities at Elsick, near Stonehaven within the Authority's area. Elsick had objected to the Supplementary Guidance when a draft had been put out to consultation on the grounds that it was contrary to guidance contained in circular 3/2012, "Planning Obligations and Good Neighbour Agreements". At the same time, Elsick entered into a Section 75 Agreement with the Authority, which included an obligation to contribute to the Fund on the condition that no contribution would be made if the Supplementary Guidance was subsequently found to be invalid. The Authority subsequently adopted the Supplementary Guidance and Elsick appealed against the adoption to the Inner House of the Court of Session under section 238 of the 1997 Act. The appeal was allowed and the Supplementary Guidance was quashed at first instance on the grounds that it failed to comply with national policy on the use of planning obligations and a fundamental principle of planning law that a planning obligation must fairly and reasonably relate to the permitted development. The Authority then appealed to the Supreme Court on the basis that the contents of the Circular were not part of the legal tests to determine the validity of a planning obligation, that the Inner House's approach to policy was 'unduly restrictive' and that the Circular was in fact complied with, given that the Developer had the opportunity to make mitigation contributions to infrastructure outside of the Fund as an alternative. Judgment In dismissing the appeal, the Supreme Court considered four fundamental questions: the correct legal test as to the lawfulness of a planning condition; the correct legal test as to the lawfulness of a planning obligation; the role of a planning obligation in the decision to grant or refuse planning permission; and the boundary between questions of legality and questions of policy. Addressing question i), the Court noted that the 1997 Act confers a wide power on local authorities to impose such conditions 'as they think fit' on the grant of planning permission. However, such powers have long been interpreted restrictively by the courts to prevent abuse of power. Conditions must only be imposed for a planning purpose and not to achieve some ulterior object; they must 'fairly and reasonably relate to the permitted development'; and they must not be Wednesbury unreasonable (as determined in the Wednesbury test case). The Court affirmed that this three-fold test for validity, having been repeatedly approved by judges at the highest level, is an established part of planning law. Addressing question ii), the Court noted that planning obligations are also of statutory creation and that Section 75 of the 1997 Act requires that the obligation restricts or regulates the development or use of the land to which it relates. Consideration was given to Tesco Stores Ltd v Secretary of State for the Environment (1994) 68 P &amp; CR 219 (the 'Tesco case') (relating to planning obligations governed by the Town and Country Planning Act 1990 in England) which found that "the only tests for the validity of a planning obligation outside the express terms of section 106 [of the 1990 Act] are that it must be for a planning purpose and not Wednesbury unreasonable. However, the Court goes on to clarify that an obligation which requires a developer to contribute towards infrastructure which is unconnected to the development of the site cannot be lawful because they would undermine the obligation on the authority to determine each application on its merits and could amount to the buying and selling of a planning permission. The Court found that "Section 75, when interpreted in its statutory context, contains an implicit limitation..namely that the restriction must serve a purpose in relation to the development or use of the burdened site. An ulterior purpose, even if it could be categorised as a planning purpose in a broad sense, will not suffice." Addressing question iii), the Court broaches the Tesco case once more in order to address the question. Section 37(2) of the 1997 Act specifies that the planning authority must have regard to provisions within a development plan (if it is material to the application), much the same as Section 70(2) of the 1990 Act. However, in order for it to be material, it must be relevant to the development; for example, in this case, even though the Fund was part of the Strategic Development Plan, it is not a material consideration as the improvements the Fund encompassed were not in their entirety directly or cumulatively linked to the development. Finally, addressing question iv) the Court states that 'relevant ministerial guidance which sets out national planning policy' is absolutely a material consideration for any planning authority in determining planning applications. This is applicable in both Scotland and England and Wales, and any failure to take this into consideration is unlawful. Summary The case establishes for the first time clear legal limitations on the use of planning obligations as means for local authorities to obtain funding for infrastructure. Such contributions must be linked directly to the development and not part of a pooled fund which is includes provisions for investment not directly related to the development. Using an obligation as a mechanism to obtain contributions to a pooled fund without establishing more than a trivial or de minimis link to the development will be unlawful. The decision is likely to have far reaching implications for local authorities and developers and will underpin the negotiation of Section 75 Agreements going forward. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 16 Jan 2018 00:00:00 Z<![CDATA[Kirsten Hewson Matthew Stimson ]]><![CDATA[ Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (Scotland) [2017] UKSC 66 In this landmark decision handed down on 25 October 2017, the Supreme Court clarifies the law governing planning obligations made under Section 75 of the Town and Country Planning (Scotland) Act 1997. The Court finds that it is unlawful for local authorities to require financial contributions to be made towards pooled funds for infrastructure which is unconnected to the development of a particular site. The decision will have a significant bearing on planning and the negotiation of planning obligations in Scotland. Background Aberdeen City and Shire Strategic Development Planning Authority (the 'Authority') sought to establish a pooled fund to facilitate significant transport infrastructure improvements, which they considered necessary to support development generally in their area. The Authority adopted Supplementary Guidance to implement a Strategic Transport Fund (the 'Fund') within its Strategic Development Plan. Elsick Development Company Limited ('Elsick') were proposing to develop approximately 4,000 houses together with commercial, retail and community facilities at Elsick, near Stonehaven within the Authority's area. Elsick had objected to the Supplementary Guidance when a draft had been put out to consultation on the grounds that it was contrary to guidance contained in circular 3/2012, "Planning Obligations and Good Neighbour Agreements". At the same time, Elsick entered into a Section 75 Agreement with the Authority, which included an obligation to contribute to the Fund on the condition that no contribution would be made if the Supplementary Guidance was subsequently found to be invalid. The Authority subsequently adopted the Supplementary Guidance and Elsick appealed against the adoption to the Inner House of the Court of Session under section 238 of the 1997 Act. The appeal was allowed and the Supplementary Guidance was quashed at first instance on the grounds that it failed to comply with national policy on the use of planning obligations and a fundamental principle of planning law that a planning obligation must fairly and reasonably relate to the permitted development. The Authority then appealed to the Supreme Court on the basis that the contents of the Circular were not part of the legal tests to determine the validity of a planning obligation, that the Inner House's approach to policy was 'unduly restrictive' and that the Circular was in fact complied with, given that the Developer had the opportunity to make mitigation contributions to infrastructure outside of the Fund as an alternative. Judgment In dismissing the appeal, the Supreme Court considered four fundamental questions: the correct legal test as to the lawfulness of a planning condition; the correct legal test as to the lawfulness of a planning obligation; the role of a planning obligation in the decision to grant or refuse planning permission; and the boundary between questions of legality and questions of policy. Addressing question i), the Court noted that the 1997 Act confers a wide power on local authorities to impose such conditions 'as they think fit' on the grant of planning permission. However, such powers have long been interpreted restrictively by the courts to prevent abuse of power. Conditions must only be imposed for a planning purpose and not to achieve some ulterior object; they must 'fairly and reasonably relate to the permitted development'; and they must not be Wednesbury unreasonable (as determined in the Wednesbury test case). The Court affirmed that this three-fold test for validity, having been repeatedly approved by judges at the highest level, is an established part of planning law. Addressing question ii), the Court noted that planning obligations are also of statutory creation and that Section 75 of the 1997 Act requires that the obligation restricts or regulates the development or use of the land to which it relates. Consideration was given to Tesco Stores Ltd v Secretary of State for the Environment (1994) 68 P &amp; CR 219 (the 'Tesco case') (relating to planning obligations governed by the Town and Country Planning Act 1990 in England) which found that "the only tests for the validity of a planning obligation outside the express terms of section 106 [of the 1990 Act] are that it must be for a planning purpose and not Wednesbury unreasonable. However, the Court goes on to clarify that an obligation which requires a developer to contribute towards infrastructure which is unconnected to the development of the site cannot be lawful because they would undermine the obligation on the authority to determine each application on its merits and could amount to the buying and selling of a planning permission. The Court found that "Section 75, when interpreted in its statutory context, contains an implicit limitation..namely that the restriction must serve a purpose in relation to the development or use of the burdened site. An ulterior purpose, even if it could be categorised as a planning purpose in a broad sense, will not suffice." Addressing question iii), the Court broaches the Tesco case once more in order to address the question. Section 37(2) of the 1997 Act specifies that the planning authority must have regard to provisions within a development plan (if it is material to the application), much the same as Section 70(2) of the 1990 Act. However, in order for it to be material, it must be relevant to the development; for example, in this case, even though the Fund was part of the Strategic Development Plan, it is not a material consideration as the improvements the Fund encompassed were not in their entirety directly or cumulatively linked to the development. Finally, addressing question iv) the Court states that 'relevant ministerial guidance which sets out national planning policy' is absolutely a material consideration for any planning authority in determining planning applications. This is applicable in both Scotland and England and Wales, and any failure to take this into consideration is unlawful. Summary The case establishes for the first time clear legal limitations on the use of planning obligations as means for local authorities to obtain funding for infrastructure. Such contributions must be linked directly to the development and not part of a pooled fund which is includes provisions for investment not directly related to the development. Using an obligation as a mechanism to obtain contributions to a pooled fund without establishing more than a trivial or de minimis link to the development will be unlawful. The decision is likely to have far reaching implications for local authorities and developers and will underpin the negotiation of Section 75 Agreements going forward. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{18DA194E-0DB7-48A3-955D-1C78B630AF2B}https://www.shoosmiths.co.uk/client-resources/legal-updates/draft-cil-regulations-clarify-cil-liability-13661.aspxDraft CIL regulations clarify CIL liability On 14 December 2017 the draft Community Infrastructure Levy (Amendment) Regulation 2018 (the 2018 Regulations) were published. The 2018 Regulations amend Regulation 128A of the Community Infrastructure Levy Regulations 2010 (CIL Regulations) which applies to applications to vary planning permissions granted before a CIL charging schedule was in force. The 2018 Regulations propose an amended formula for calculating the adjustment to be applied to CIL liability in respect of applications falling within Regulation 128A. Rates of CIL in charging schedules are indexed annually to the BCIS All-In Tender Price index. There has been some confusion about the CIL rates and indexation that apply in the circumstances above. Some charging authorities have sought to apply a formula to calculate CIL liability that is based on the indexation at the time of the original permission, leading to significantly inflated CIL liability. This was highlighted in the appeal heard by the Valuation Office Agency relating to the St John's Hill development in Clapham. The tribunal valuer in the appeal concluded that when calculating CIL payments in respect of an amendment to an existing application, CIL liability should be calculated based on indexation at the time of the amended application not the original permission. The 2018 Regulations will (assuming they are not changed) confirm that the appropriate indexation figure to be used is the index figure for the relevant section 73 application with a like for like comparison to be made to determine the adjustment to the CIL liability. The explanatory note accompanying the 2018 Regulations explains that to assess the additional CIL incurred as a result of any change introduced by a section 73 permission the charging authority should "compare the CIL charge for the section 73 development to the hypothetical CIL charge that the original planning permission would have been subject to. The CIL liability is the difference between the two figures". The 2018 Regulations will therefore provide clarity, and give effect to the approach many believed to be the intention of the CIL Regulations, that the levy is only charged for the additional liability introduced through the section 73 permission. Although this amendment to the CIL Regulations will not affect a significant number of permissions it is a welcome clarification for developers, particularly in respect of large scale developments and should avoid disputes, such as those in the relation to the St John's Hill development, arising in the future. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 20 Dec 2017 00:00:00 Z<![CDATA[Kara Roberts Paul Weeks ]]><![CDATA[ On 14 December 2017 the draft Community Infrastructure Levy (Amendment) Regulation 2018 (the 2018 Regulations) were published. The 2018 Regulations amend Regulation 128A of the Community Infrastructure Levy Regulations 2010 (CIL Regulations) which applies to applications to vary planning permissions granted before a CIL charging schedule was in force. The 2018 Regulations propose an amended formula for calculating the adjustment to be applied to CIL liability in respect of applications falling within Regulation 128A. Rates of CIL in charging schedules are indexed annually to the BCIS All-In Tender Price index. There has been some confusion about the CIL rates and indexation that apply in the circumstances above. Some charging authorities have sought to apply a formula to calculate CIL liability that is based on the indexation at the time of the original permission, leading to significantly inflated CIL liability. This was highlighted in the appeal heard by the Valuation Office Agency relating to the St John's Hill development in Clapham. The tribunal valuer in the appeal concluded that when calculating CIL payments in respect of an amendment to an existing application, CIL liability should be calculated based on indexation at the time of the amended application not the original permission. The 2018 Regulations will (assuming they are not changed) confirm that the appropriate indexation figure to be used is the index figure for the relevant section 73 application with a like for like comparison to be made to determine the adjustment to the CIL liability. The explanatory note accompanying the 2018 Regulations explains that to assess the additional CIL incurred as a result of any change introduced by a section 73 permission the charging authority should "compare the CIL charge for the section 73 development to the hypothetical CIL charge that the original planning permission would have been subject to. The CIL liability is the difference between the two figures". The 2018 Regulations will therefore provide clarity, and give effect to the approach many believed to be the intention of the CIL Regulations, that the levy is only charged for the additional liability introduced through the section 73 permission. Although this amendment to the CIL Regulations will not affect a significant number of permissions it is a welcome clarification for developers, particularly in respect of large scale developments and should avoid disputes, such as those in the relation to the St John's Hill development, arising in the future. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{5D1F07AC-6050-46B1-A621-1E119F72E9B9}https://www.shoosmiths.co.uk/client-resources/legal-updates/duty-to-give-reasons-13623.aspxDuty to Give Reasons The Supreme Court has clarified the circumstances in which a local planning authority must give reasons for the grant of a planning permission. A failure to give reasons, when required, can lead to the planning permission being quashed by the courts and unnecessary delay in developing property. Background When must a local planning authority give reasons for the grant of planning permission? This fairly innocuous question has caused more problems and litigation than it really deserves, ending up in the Supreme Court, who, on 6 December 2017, gave its judgement on this question in the two cases of Dover District Council v CPRE Kent and CPRE (Kent) v Chine Gateway International1 . The facts of these cases are important. They concerned the grant of two planning permissions on sensitive sites to the west of Dover. One was situated within the Kent Downs Area of Outstanding Natural Beauty and the other on a prominent hilltop overlooking Dover, dominated by Napoleonic wars-era fortifications. Both applications for planning permissions were controversial but were recommended by the planning officer for approval with some changes to the developments, including a reduction in the number of dwellings from 521 to 365. The applicants did not accept that reduction, stating that it would render the development unviable. The planning committee agreed with the applicants and resolved at a meeting on 13 June 2013 (ratified following negotiations on the section 106 agreement at a further meeting on 18 December 2014) to grant planning permissions for the original 521 dwellings. The section 106 agreement was concluded and planning permission granted on 1 April 2015. The case The permissions were challenged on a number of grounds, of which only one was allowed to be argued - that Dover District Council should have given reasons for granting the planning permission. The Supreme Court upheld the decision of the Court of Appeal to quash the planning permissions. In giving the leading judgement, Lord Carnworth stated that: Where a development is an EIA Development (that is, it requires an environmental assessment), there is a requirement to give reasons for the grant of planning permission in all cases. The decision to grant the planning permission must explain the reasoning of the planning committee, particularly where committee members, or some of them, do not agree with the reasons given in the planning officer's report. In the cases in issue, Lord Carnworth pointed out that there was, for instance, a requirement to give a properly reasoned statement as to why the planning committee rejected the planning officer's judgement that the viability of the scheme would not be jeopardised by the reduction in dwellings; Although not strictly binding, he also stated that, for all other applications, there is a duty to give reasons for the grant of planning permission when permission has been granted (for instance, but not exclusively) for controversial proposals, against planning officer's advice or where there is major departure from the development plan or the National Planning Policy Framework. In most cases where the planning committee follows the planning officer's recommendations, they can simply adopt those recommendations and the reasoning behind them. What does this mean in practice? The Supreme Court has reaffirmed that, as we all understood, there is a requirement to give reasons for granting an application for EIA Development. They have, however, clarified that those reasons must be sufficient to understand where there has been any disagreement within the committee, not just that the majority resolved to grant permission as set out in the planning officer's report. That could be quite onerous on the committee. The decision has also breathed new life into the requirement to, in certain circumstances, give reasons for all other developments. This could be fertile ground for challenging the grant of planning permission. Except in straightforward cases where the planning officer's recommendations and reasoning is accepted by all of the planning committee, we would advise that reasons should be given. If not forthcoming, they should be requested, before the grant of the planning permission. As an aside, it is worth noting that the period from the submission for the application (13 May 2012) to the grant of permission was more than three years - a depressingly familiar time period for large complex developments. Add to this the time taken for the legal challenge up to the Supreme Court decision, the applicants have spent the past five years and seven months effectively getting nowhere. The application is now back with Dover District Council for redetermination. So much for speeding up the delivery of housing developments. 1 [2017] EWCA Civ 936 DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Fri, 08 Dec 2017 00:00:00 Z<![CDATA[ The Supreme Court has clarified the circumstances in which a local planning authority must give reasons for the grant of a planning permission. A failure to give reasons, when required, can lead to the planning permission being quashed by the courts and unnecessary delay in developing property. Background When must a local planning authority give reasons for the grant of planning permission? This fairly innocuous question has caused more problems and litigation than it really deserves, ending up in the Supreme Court, who, on 6 December 2017, gave its judgement on this question in the two cases of Dover District Council v CPRE Kent and CPRE (Kent) v Chine Gateway International1 . The facts of these cases are important. They concerned the grant of two planning permissions on sensitive sites to the west of Dover. One was situated within the Kent Downs Area of Outstanding Natural Beauty and the other on a prominent hilltop overlooking Dover, dominated by Napoleonic wars-era fortifications. Both applications for planning permissions were controversial but were recommended by the planning officer for approval with some changes to the developments, including a reduction in the number of dwellings from 521 to 365. The applicants did not accept that reduction, stating that it would render the development unviable. The planning committee agreed with the applicants and resolved at a meeting on 13 June 2013 (ratified following negotiations on the section 106 agreement at a further meeting on 18 December 2014) to grant planning permissions for the original 521 dwellings. The section 106 agreement was concluded and planning permission granted on 1 April 2015. The case The permissions were challenged on a number of grounds, of which only one was allowed to be argued - that Dover District Council should have given reasons for granting the planning permission. The Supreme Court upheld the decision of the Court of Appeal to quash the planning permissions. In giving the leading judgement, Lord Carnworth stated that: Where a development is an EIA Development (that is, it requires an environmental assessment), there is a requirement to give reasons for the grant of planning permission in all cases. The decision to grant the planning permission must explain the reasoning of the planning committee, particularly where committee members, or some of them, do not agree with the reasons given in the planning officer's report. In the cases in issue, Lord Carnworth pointed out that there was, for instance, a requirement to give a properly reasoned statement as to why the planning committee rejected the planning officer's judgement that the viability of the scheme would not be jeopardised by the reduction in dwellings; Although not strictly binding, he also stated that, for all other applications, there is a duty to give reasons for the grant of planning permission when permission has been granted (for instance, but not exclusively) for controversial proposals, against planning officer's advice or where there is major departure from the development plan or the National Planning Policy Framework. In most cases where the planning committee follows the planning officer's recommendations, they can simply adopt those recommendations and the reasoning behind them. What does this mean in practice? The Supreme Court has reaffirmed that, as we all understood, there is a requirement to give reasons for granting an application for EIA Development. They have, however, clarified that those reasons must be sufficient to understand where there has been any disagreement within the committee, not just that the majority resolved to grant permission as set out in the planning officer's report. That could be quite onerous on the committee. The decision has also breathed new life into the requirement to, in certain circumstances, give reasons for all other developments. This could be fertile ground for challenging the grant of planning permission. Except in straightforward cases where the planning officer's recommendations and reasoning is accepted by all of the planning committee, we would advise that reasons should be given. If not forthcoming, they should be requested, before the grant of the planning permission. As an aside, it is worth noting that the period from the submission for the application (13 May 2012) to the grant of permission was more than three years - a depressingly familiar time period for large complex developments. Add to this the time taken for the legal challenge up to the Supreme Court decision, the applicants have spent the past five years and seven months effectively getting nowhere. The application is now back with Dover District Council for redetermination. So much for speeding up the delivery of housing developments. 1 [2017] EWCA Civ 936 DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{D214CD83-7CB6-486A-8D6E-97E3E8DE2E7C}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-planning-unit-know-your-limits-13607.aspxThe planning unit - Know your limits When determining whether a material change of use of land or buildings has taken place, what is the most appropriate physical area against which to assess the materiality of the change or, in short, what is the "planning unit"? On the face of it, this is quite a simple question and the Court will generally look at it as 'a matter of common sense' using the unit of occupation itself as a starting point. However, the answer is often far from black and white and necessitates specific consideration on a case by case basis as a material change of use of a planning unit will often require express planning permission from the local planning authority. The three tests While the Court never intended them to become exhaustive tests to cover every situation, three tests for determining the planning unit were laid out by Bridge J in Burdle v. Secretary of State for the Environment, as follows: First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. Secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit. The first test - Ancillary use The first test is intended to cover ancillary uses of land. Take, for example, a large retail store with a small area of office space used to facilitate the processing of the retail store's paperwork, with both areas (i.e. the store and the office space) being within the same occupation. Under this first test, the whole of the retail store, including the office space, will be considered the planning unit. There are, however, exceptions to this principle. In 2002, for instance, on an appeal from the Secretary of State, the Court ruled against Harrods' application for a lawful development certificate for the proposed use of the existing roof of the company's store in Knightsbridge for a helicopter landing. The helicopter landing was to be used solely by the owner of the store in connection with his role as chairman and his work in directing the day-to-day operations of the store. In making his decision, the Secretary of State regarded "ordinary and reasonable practice" or what was "normally done" at inner city department stores and decided that the use of the roof as a helicopter landing was not incidental or ancillary to the use of the department store. The Court refused to overturn the Secretary of State's decision and considered that he was entitled to come to that conclusion meaning that the store and the roof were separate planning units. The second test - Composite use The second test is intended to cover 'composite' uses of land. Take, for example, use of land as a vehicle dealership including elements of retail use, storage, offices and staff facilities, all within the same occupation. Under the second test, the entire vehicle dealership will be considered the planning unit. However, that is not to say that you can intensify, cease or add a use so that there is a material difference in the overall mix of uses operating within a composite use planning unit without planning permission. Taking the above example, the addition of a substantial car repair service at the vehicle dealership may constitute a material change of use of the planning unit necessitating planning permission. The third test - Separate planning units Finally, the third test is intended to cover separate planning units within the same building. Take for example individual flats within a residential block, under the third test each flat will be considered a separate planning unit. This approach was confirmed by the Court in a case concerning the Metro Centre in Gateshead where each individual shop was considered to be its own planning unit. Physically separate and distinct areas, however, will not always be considered separate planning units, provided that they are used for similar and related purposes. For example, in 1997, the Court held that an Inspector was entitled to conclude that the co-ordinated pattern of the use of five parcels of land for markets overrode their physical separation and disunity of ownership such that they were in fact one planning unit. The parcels of land in question were owned by three separate parties and were, in places, split by a main road and a small slither of other land. The examples given above can be difficult to reconcile. Accordingly, the answer to the question of what is the planning unit, as noted by Bridge J in Burdle, 'must be a question of fact and degree' to which the decision taker applies his or her mind on a case by case basis. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 05 Dec 2017 00:00:00 Z<![CDATA[Sam Grange Matthew Price ]]><![CDATA[ When determining whether a material change of use of land or buildings has taken place, what is the most appropriate physical area against which to assess the materiality of the change or, in short, what is the "planning unit"? On the face of it, this is quite a simple question and the Court will generally look at it as 'a matter of common sense' using the unit of occupation itself as a starting point. However, the answer is often far from black and white and necessitates specific consideration on a case by case basis as a material change of use of a planning unit will often require express planning permission from the local planning authority. The three tests While the Court never intended them to become exhaustive tests to cover every situation, three tests for determining the planning unit were laid out by Bridge J in Burdle v. Secretary of State for the Environment, as follows: First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered. Secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit. The first test - Ancillary use The first test is intended to cover ancillary uses of land. Take, for example, a large retail store with a small area of office space used to facilitate the processing of the retail store's paperwork, with both areas (i.e. the store and the office space) being within the same occupation. Under this first test, the whole of the retail store, including the office space, will be considered the planning unit. There are, however, exceptions to this principle. In 2002, for instance, on an appeal from the Secretary of State, the Court ruled against Harrods' application for a lawful development certificate for the proposed use of the existing roof of the company's store in Knightsbridge for a helicopter landing. The helicopter landing was to be used solely by the owner of the store in connection with his role as chairman and his work in directing the day-to-day operations of the store. In making his decision, the Secretary of State regarded "ordinary and reasonable practice" or what was "normally done" at inner city department stores and decided that the use of the roof as a helicopter landing was not incidental or ancillary to the use of the department store. The Court refused to overturn the Secretary of State's decision and considered that he was entitled to come to that conclusion meaning that the store and the roof were separate planning units. The second test - Composite use The second test is intended to cover 'composite' uses of land. Take, for example, use of land as a vehicle dealership including elements of retail use, storage, offices and staff facilities, all within the same occupation. Under the second test, the entire vehicle dealership will be considered the planning unit. However, that is not to say that you can intensify, cease or add a use so that there is a material difference in the overall mix of uses operating within a composite use planning unit without planning permission. Taking the above example, the addition of a substantial car repair service at the vehicle dealership may constitute a material change of use of the planning unit necessitating planning permission. The third test - Separate planning units Finally, the third test is intended to cover separate planning units within the same building. Take for example individual flats within a residential block, under the third test each flat will be considered a separate planning unit. This approach was confirmed by the Court in a case concerning the Metro Centre in Gateshead where each individual shop was considered to be its own planning unit. Physically separate and distinct areas, however, will not always be considered separate planning units, provided that they are used for similar and related purposes. For example, in 1997, the Court held that an Inspector was entitled to conclude that the co-ordinated pattern of the use of five parcels of land for markets overrode their physical separation and disunity of ownership such that they were in fact one planning unit. The parcels of land in question were owned by three separate parties and were, in places, split by a main road and a small slither of other land. The examples given above can be difficult to reconcile. Accordingly, the answer to the question of what is the planning unit, as noted by Bridge J in Burdle, 'must be a question of fact and degree' to which the decision taker applies his or her mind on a case by case basis. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{DD958FAA-F675-4BC3-BE59-C71539182746}https://www.shoosmiths.co.uk/client-resources/legal-updates/duty-to-provide-reasons-on-planning-decisions-13487.aspxDuty to provide reasons on planning decisions? The last year saw 121 High Court judgments dealing with planning, 32 in the Court of Appeal and one in the Supreme Court including three cases providing guidance on when and to what degree a local authority should provide reasons in planning matters. Three recent cases have seen the Courts effectively introducing a common law duty for the planning authority to provide reasons in certain circumstances. If this duty is not complied with then it may provide fertile ground for litigation. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 Background: Planning application submitted in 2013 by Cambridge City Football Club for a 3000 seat football stadium in the Cambridgeshire Green Belt; A very detailed report prepared by the Council's planners recognising economic and community benefits of the scheme; Report concluded that these were not sufficient to constitute 'very special circumstances' to justify development in the Green Belt; Recommended refusal and application went to planning committee; Committee members approved the application however there was no record of reasons for the members' decision in the committee minutes and none were given orally at committee. Manuscript notes suggest certain issues were raised but these did not give the basis for the approval. Permission subsequently granted with a statement that the basis for the approval was available on the Council's website, though only the planner's report recommending refusal was available. Oakley applied for judicial review - dismissed by the High Court, rejecting the argument that members were required to give reasons. At the Court of Appeal in January this year, the Court considered various cases on reasons and examined whether, as a general principle, authorities were required to give reasons for their decisions. The Court concluded there is no general duty to give reasons (including in planning cases) except, where a decision is 'aberrant' i.e. it departs from the current standard. Therefore, in circumstances where Green Belt policy was relevant and planners had clearly set out a case for refusal, it was incumbent on members to give a reasoned explanation for why they had gone against the recommendation. R (oao CPRE Kent) v Dover District Council [2016] EWCA Civ 936 Background: Permission sought for a substantial development in Dover; Site was in the Kent Downs Area of Outstanding Natural Beauty (AONB) and close to a scheduled ancient monument; CPRE and others, including Natural England, objected to the scheme; Detailed report prepared and planners concluded that the proposal would have a significant detrimental impact on the landscape and would result in long term irreversible harm to the AONB; Recommended refusal; Members resolved by majority to grant permission subject to the completion of a section 106 agreement which included payment of £5m for the refurbishment of the scheduled monument and the creation of a visitors centre and museum; Minutes only appear to record individual councillors' contributions, rather than a collective and collaborative reasoning of the merits of the planner's report; CPRE challenged the decision. The Court considered the detail of the reasons and found that the fact that members departed from the planner's recommendation meant that the planner's reasoning ought to be grappled with. There was no apparent document which did this meaning that members had given inadequate reasons, particularly in relation to the treatment of the planner's assessment of the harm that would be inflicted on the AONB. R (oao Shasha) v Westminster City Council [2016] EWHC 3282 (Admin) Background: Landlord of the apartment building applied for permission to install a subterranean gym, estate office and meeting rooms for residents; Claimant was a resident of a sub-ground flat where a wall was to be constructed directly outside the flat and less than 1m from a principal window; Claimant objected, setting out concerns on amenity and the proximity of the wall; Delegated report was prepared acknowledging the impact on the claimant's property however, concluding that as permission had previously been granted for a similar proposal the objections on the loss of daylight did not justify refusal (despite there being a development plan policy which discouraged developments which created a loss of natural light); Permission was subsequently granted. Claimant challenged the decision, arguing that the authority had not considered their objections on their merits and had treated their objections as irrelevant because of the earlier permission. The Court agreed and quashed the permission on the basis that the delegated report did not properly consider the claimant's objections or the development plan policy which discouraged development that created unacceptable overshadowing or loss of natural light. The reasons for granting permission were therefore considered to be inadequate. Where does this leave us? It is clear that local authorities must take care when explaining why decisions have been made in the way they have. Where a decision departs from a recommendation, reasons must be carefully drafted and engage with the planner's recommendation clearly explaining the reasons for departure otherwise, as in each of these cases, the permissions will be at risk of being quashed. The decision in Oakley does come close to imposing a common law duty to provide reasons, at least in cases where the grant of permission is contrary to the development plan and/or important national policy (such as the Green Belt) and departs from a planner's recommendation. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.Tue, 31 Oct 2017 00:00:00 Z<![CDATA[Anna Cartledge ]]><![CDATA[ The last year saw 121 High Court judgments dealing with planning, 32 in the Court of Appeal and one in the Supreme Court including three cases providing guidance on when and to what degree a local authority should provide reasons in planning matters. Three recent cases have seen the Courts effectively introducing a common law duty for the planning authority to provide reasons in certain circumstances. If this duty is not complied with then it may provide fertile ground for litigation. Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71 Background: Planning application submitted in 2013 by Cambridge City Football Club for a 3000 seat football stadium in the Cambridgeshire Green Belt; A very detailed report prepared by the Council's planners recognising economic and community benefits of the scheme; Report concluded that these were not sufficient to constitute 'very special circumstances' to justify development in the Green Belt; Recommended refusal and application went to planning committee; Committee members approved the application however there was no record of reasons for the members' decision in the committee minutes and none were given orally at committee. Manuscript notes suggest certain issues were raised but these did not give the basis for the approval. Permission subsequently granted with a statement that the basis for the approval was available on the Council's website, though only the planner's report recommending refusal was available. Oakley applied for judicial review - dismissed by the High Court, rejecting the argument that members were required to give reasons. At the Court of Appeal in January this year, the Court considered various cases on reasons and examined whether, as a general principle, authorities were required to give reasons for their decisions. The Court concluded there is no general duty to give reasons (including in planning cases) except, where a decision is 'aberrant' i.e. it departs from the current standard. Therefore, in circumstances where Green Belt policy was relevant and planners had clearly set out a case for refusal, it was incumbent on members to give a reasoned explanation for why they had gone against the recommendation. R (oao CPRE Kent) v Dover District Council [2016] EWCA Civ 936 Background: Permission sought for a substantial development in Dover; Site was in the Kent Downs Area of Outstanding Natural Beauty (AONB) and close to a scheduled ancient monument; CPRE and others, including Natural England, objected to the scheme; Detailed report prepared and planners concluded that the proposal would have a significant detrimental impact on the landscape and would result in long term irreversible harm to the AONB; Recommended refusal; Members resolved by majority to grant permission subject to the completion of a section 106 agreement which included payment of £5m for the refurbishment of the scheduled monument and the creation of a visitors centre and museum; Minutes only appear to record individual councillors' contributions, rather than a collective and collaborative reasoning of the merits of the planner's report; CPRE challenged the decision. The Court considered the detail of the reasons and found that the fact that members departed from the planner's recommendation meant that the planner's reasoning ought to be grappled with. There was no apparent document which did this meaning that members had given inadequate reasons, particularly in relation to the treatment of the planner's assessment of the harm that would be inflicted on the AONB. R (oao Shasha) v Westminster City Council [2016] EWHC 3282 (Admin) Background: Landlord of the apartment building applied for permission to install a subterranean gym, estate office and meeting rooms for residents; Claimant was a resident of a sub-ground flat where a wall was to be constructed directly outside the flat and less than 1m from a principal window; Claimant objected, setting out concerns on amenity and the proximity of the wall; Delegated report was prepared acknowledging the impact on the claimant's property however, concluding that as permission had previously been granted for a similar proposal the objections on the loss of daylight did not justify refusal (despite there being a development plan policy which discouraged developments which created a loss of natural light); Permission was subsequently granted. Claimant challenged the decision, arguing that the authority had not considered their objections on their merits and had treated their objections as irrelevant because of the earlier permission. The Court agreed and quashed the permission on the basis that the delegated report did not properly consider the claimant's objections or the development plan policy which discouraged development that created unacceptable overshadowing or loss of natural light. The reasons for granting permission were therefore considered to be inadequate. Where does this leave us? It is clear that local authorities must take care when explaining why decisions have been made in the way they have. Where a decision departs from a recommendation, reasons must be carefully drafted and engage with the planner's recommendation clearly explaining the reasons for departure otherwise, as in each of these cases, the permissions will be at risk of being quashed. The decision in Oakley does come close to imposing a common law duty to provide reasons, at least in cases where the grant of permission is contrary to the development plan and/or important national policy (such as the Green Belt) and departs from a planner's recommendation. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.]]>{BC66E2FC-89FF-427E-90AA-F9324185FFFE}https://www.shoosmiths.co.uk/client-resources/legal-updates/environmental-claims-neednt-cost-the-earth-13456.aspxEnvironmental claims needn&#39;t cost the earth The Planning Court has recently clarified the rules on costs protection for claimants bringing judicial review claims and statutory challenges on environmental grounds. Both sides in the proceedings are claiming victory, but did either of them really win? Like any form of litigation, challenging planning or environmental decisions of public bodies by judicial review can be expensive and risky. If unsuccessful, a claimant is likely to have to pay the defendant's costs. However, in such cases both claimants and defendants are entitled to costs protection under rules which implement the requirement in Article 9(4) of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) that proceedings must be "not prohibitively expensive". Background In 2013 the Civil Procedure Rules were changed to introduce fixed costs caps in judicial review cases to which the Aarhus Convention applied (Aarhus cases). Individual claimants were entitled to an automatic cost cap of £5,000, corporate claimants to a cap of £10,000 and unsuccessful defendants to a cap of £35,000. In February 2017 further changes were introduced, extending the fixed costs caps to statutory challenges (such as under section 288 of the Town and Country Planning Act 1990), but also enabling the costs cap to be varied at any stage in the proceedings and requiring claimants to provide details of their financial resources (including any third party support). Three environmental organisations - the RSPB, Friends of the Earth and Client Earth - challenged the February 2017 changes. They argued: the ability to vary the costs caps at any point in the proceedings failed to provide 'reasonable predictability' in relation to both whether costs were payable and their amount; it was unlawful to fail to provide for private hearings when a claimant's or third party supporter's financial means might be discussed at the hearing; and the claimant's own legal costs should also be included in the assessment of whether costs protection could be granted and whether or not the proceedings were 'prohibitively expensive'. Did the ability to vary costs caps provide 'reasonable predictability'? The claimants argued that the risk of costs caps changing during the course of proceedings would have a significant 'chilling effect' on claimants' willingness to bring proceedings in meritorious cases. However, the court noted that the Civil Procedure Rules already required defendants to apply for any variation of a default costs cap in their acknowledgement of service. On that basis, it considered that they provided 'reasonable predictability'. Nonetheless, it would still be possible for the default costs cap to be reconsidered if a claimant provided false or misleading financial information, or if there was a material change in their financial circumstances. Should hearings to assess financial means be held in private? The claimants were concerned that the changes introduced in February 2017 might require them to reveal the identity of individual donors and details of their donations, which might deter those donors from supporting the recipients of their donations. Although the Ministry of Justice had made a concession that it would recommend that hearings to discuss financial means should be in private - where the claimant was a private individual - the court saw no basis for differentiating between private individuals and other legal persons. The court, therefore, ruled that the prospect of public disclosure of claimants' and their supporters' financial information breached the requirement to ensure wide access to justice, and that all disputes over costs cap increases in Aarhus cases should be held in private. Should claimants' own costs also be assessed? The Ministry of Justice accepted that a claimant's own legal costs could be a material matter for the court to consider in assessing whether the default costs caps were appropriate. Implications Both sides in the proceedings claimed victory. However, the real value in the case is the clarification it provides not only for individuals and environmental organisations who may bring judicial review claims and statutory challenges, and for public bodies defending such claims and challenges, but also for interested parties in those proceedings, such as developers whose planning permissions are at risk. Those interested parties need to be aware that if they want to challenge the default costs caps afforded to claimants, then they need to do it at the earliest possible stage in the proceedings. To the extent that it is possible (and lawful), they should also try to keep the claimant's financial means under review, in case there is scope for the default costs cap to be reconsidered at a later stage in the proceedings. The Royal Society for the Protection of Birds v Secretary of State for Justice [2017] EWHC 2309 (Admin) DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 25 Oct 2017 00:00:00 +0100<![CDATA[Angus Evers ]]><![CDATA[ The Planning Court has recently clarified the rules on costs protection for claimants bringing judicial review claims and statutory challenges on environmental grounds. Both sides in the proceedings are claiming victory, but did either of them really win? Like any form of litigation, challenging planning or environmental decisions of public bodies by judicial review can be expensive and risky. If unsuccessful, a claimant is likely to have to pay the defendant's costs. However, in such cases both claimants and defendants are entitled to costs protection under rules which implement the requirement in Article 9(4) of the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) that proceedings must be "not prohibitively expensive". Background In 2013 the Civil Procedure Rules were changed to introduce fixed costs caps in judicial review cases to which the Aarhus Convention applied (Aarhus cases). Individual claimants were entitled to an automatic cost cap of £5,000, corporate claimants to a cap of £10,000 and unsuccessful defendants to a cap of £35,000. In February 2017 further changes were introduced, extending the fixed costs caps to statutory challenges (such as under section 288 of the Town and Country Planning Act 1990), but also enabling the costs cap to be varied at any stage in the proceedings and requiring claimants to provide details of their financial resources (including any third party support). Three environmental organisations - the RSPB, Friends of the Earth and Client Earth - challenged the February 2017 changes. They argued: the ability to vary the costs caps at any point in the proceedings failed to provide 'reasonable predictability' in relation to both whether costs were payable and their amount; it was unlawful to fail to provide for private hearings when a claimant's or third party supporter's financial means might be discussed at the hearing; and the claimant's own legal costs should also be included in the assessment of whether costs protection could be granted and whether or not the proceedings were 'prohibitively expensive'. Did the ability to vary costs caps provide 'reasonable predictability'? The claimants argued that the risk of costs caps changing during the course of proceedings would have a significant 'chilling effect' on claimants' willingness to bring proceedings in meritorious cases. However, the court noted that the Civil Procedure Rules already required defendants to apply for any variation of a default costs cap in their acknowledgement of service. On that basis, it considered that they provided 'reasonable predictability'. Nonetheless, it would still be possible for the default costs cap to be reconsidered if a claimant provided false or misleading financial information, or if there was a material change in their financial circumstances. Should hearings to assess financial means be held in private? The claimants were concerned that the changes introduced in February 2017 might require them to reveal the identity of individual donors and details of their donations, which might deter those donors from supporting the recipients of their donations. Although the Ministry of Justice had made a concession that it would recommend that hearings to discuss financial means should be in private - where the claimant was a private individual - the court saw no basis for differentiating between private individuals and other legal persons. The court, therefore, ruled that the prospect of public disclosure of claimants' and their supporters' financial information breached the requirement to ensure wide access to justice, and that all disputes over costs cap increases in Aarhus cases should be held in private. Should claimants' own costs also be assessed? The Ministry of Justice accepted that a claimant's own legal costs could be a material matter for the court to consider in assessing whether the default costs caps were appropriate. Implications Both sides in the proceedings claimed victory. However, the real value in the case is the clarification it provides not only for individuals and environmental organisations who may bring judicial review claims and statutory challenges, and for public bodies defending such claims and challenges, but also for interested parties in those proceedings, such as developers whose planning permissions are at risk. Those interested parties need to be aware that if they want to challenge the default costs caps afforded to claimants, then they need to do it at the earliest possible stage in the proceedings. To the extent that it is possible (and lawful), they should also try to keep the claimant's financial means under review, in case there is scope for the default costs cap to be reconsidered at a later stage in the proceedings. The Royal Society for the Protection of Birds v Secretary of State for Justice [2017] EWHC 2309 (Admin) DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{0526A781-A88A-45B7-AF44-C3330F45A432}https://www.shoosmiths.co.uk/client-resources/legal-updates/suffolk-coastal-all-change-but-no-change-12810.aspxHopkins Homes &amp; Richborough Estates - all change but no change? The effect of the absence of a five-year housing supply is to trigger the presumption in favour of sustainable development, not just an assessment of whether a policy in a development plan is out of date. The Supreme Court decision in the Suffolk Coastal District Council v Hopkins Homes Ltd and the Richborough Estates Partnership LLP v Cheshire East Borough Council cases was handed down on 10 May. This judgment is of huge importance in relation to housing development and the interpretation of the National Policy Planning Framework (NPPF). Summary Paragraph 49 NPPF policies for the supply of housing are those related to that supply, for instance site allocations, and will be out of date in the absence of a five-year housing land supply. The Supreme Court has given paragraph 49 of the NPPF a narrow interpretation but clarified that the absence of a five-year housing land supply triggers the paragraph 14 NPPF presumption in favour of sustainable development. That has the effect that, in the planning balancing exercise, any polices that affect housing supply will, in the absence of a demonstrable five-year housing land supply, have reduced weight. Policies that affect the supply of housing but are not policies for the supply of housing will not be out of date as far as paragraph 49 NPPF is concerned, but the weight to be given to them in the balancing exercise will be reduced, in the absence of a five-year housing land supply Paragraph 49 of the NPPF states that 'policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five-year supply of deliverable sites'. The Court of Appeal stated that 'policies for the supply of housing' should be given a wide interpretation: policies that affect the supply of housing and not just polices that are expressly related to housing supply such as the allocation of sites. Both Suffolk Coastal District Council and Cheshire East Borough Council appealed this decision to the Supreme Court, arguing that the proper interpretation of paragraph 49 is a narrow interpretation that concerns itself only with polices that are directly concerned with the supply of housing. The Supreme Court has dismissed these appeals. The Supreme Court justices agreed that paragraph 49 NPPF should have a narrow meaning but that the absence of a five-year housing supply has a wider effect in the planning balancing exercise, one that goes beyond that narrow ambit. The Court stated that the paragraph 14 NPPF presumption in favour of sustainable development is brought into play in the absence of a five-year housing land supply. This means that whether or not policies are paragraph 49 out of date policies, it is a matter of planning judgment as to the weight that these policies are to be given. That judgement should be exercised free of any overly legalistic approach to the NPPF, but subject to normal judicial oversight and, for housing developments, the overreaching need to boost the supply of housing (paragraph 47 NPPF). The issues The main issue at stake in these cases was the interpretation of paragraph 49 of the NPPF: 'Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.' The cases were concerned with what should be construed as a relevant policy for the supply of housing. Should paragraph 49 have a narrow construction? That the policy must in effect state that it is specifically concerned with the supply of housing (for instance site allocation policies) to be out of date in the absence of a five-year housing land supply. Or, should it have a wide construction? That any policy that has an effect on the supply of housing (for instance a generic countryside protection policy) is covered by it. The Supreme Court judgment While the Supreme Court justices have stated that paragraph 49 should have the narrow construction set out above, they have also stated that the effect of the absence or otherwise of a five-year housing supply goes further. The question of whether a policy is a paragraph 49 out of date policy is not determinative of the application of the presumption in favour of sustainable development or the paragraph 47 entreaty to boost the supply of housing. It is merely one aspect of the planning balancing exercise. In giving the Leading judgment Lord Carnworth states at paragraph 59: 'This may be regarded as adopting the 'narrow' meaning, contrary to the conclusion of the Court of Appeal. However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within the expression. The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.' The effect of the judgment Questions over the absence or otherwise of a five-year housing supply are still very significant but paragraph 49 is not the determinative part of the NPPF. The absence of such a supply will mean that policies (narrow interpretation) for the supply of housing will be out of date. Other policies that have the effect of restricting the supply of housing will arguably, applying paragraph 14 of the NPPF and in the context of paragraph 47, have, in the planning balancing exercise, reduced weight depending on the extent of the five-year supply deficit and the significance of those policies. For applications and appeals this may mean little more than a change in language. Policies that fall within paragraph 49 in the absence of a five-year housing land supply should still be referred to as being out of date and the weight to be given to them consequently diminished. Other policies that restrict the supply of housing will not be out of date but the weight to be given to them will need to be balanced against the paragraph 47 NPPF entreaty to boost the supply of housing and the presumption in favour of sustainable development in paragraph 14 NPPF. Importantly Lord Gill makes the point that the balancing exercise applies to all policies including, for instance, green belt policies. This provides welcome clarification that the paragraph 14 presumption applies even if the land is subject to the restrictive policies mentioned in footnote 9 to paragraph 14. The reverse is often argued. As above, the weight to be given to these policies is all part of the planning balancing exercise but, as Lord Gill states at paragraph 83, '[i]f a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated'. This is a clear entreaty to planning authorities to give serious weight to the guidance set out in the Framework over a rigorous adherence to policies, even if they are restrictive footnote 9 policies such as green belt. Such policies must be considered in the balancing exercise and potentially given less weight than is often the case now. This does not mean that local planning authorities or inspectors hearing appeals can make arbitrary decisions on the weight to be given to policies or that the interpretation of those policies is not a matter of law, but it does move away from the legalistic approach that was being taken to whether policies fall under paragraph 49 NPPF as out of date or not and the effect of such a decision. The decision, by putting the question over the 'class of policy' to one side in favour of a planning balancing exercise in respect of all policies that affect housing development, whether they are out of date or not, is likely to mean that there are less legal challenges. Not a bad result, even for lawyers. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Wed, 10 May 2017 00:00:00 +0100<![CDATA[ The effect of the absence of a five-year housing supply is to trigger the presumption in favour of sustainable development, not just an assessment of whether a policy in a development plan is out of date. The Supreme Court decision in the Suffolk Coastal District Council v Hopkins Homes Ltd and the Richborough Estates Partnership LLP v Cheshire East Borough Council cases was handed down on 10 May. This judgment is of huge importance in relation to housing development and the interpretation of the National Policy Planning Framework (NPPF). Summary Paragraph 49 NPPF policies for the supply of housing are those related to that supply, for instance site allocations, and will be out of date in the absence of a five-year housing land supply. The Supreme Court has given paragraph 49 of the NPPF a narrow interpretation but clarified that the absence of a five-year housing land supply triggers the paragraph 14 NPPF presumption in favour of sustainable development. That has the effect that, in the planning balancing exercise, any polices that affect housing supply will, in the absence of a demonstrable five-year housing land supply, have reduced weight. Policies that affect the supply of housing but are not policies for the supply of housing will not be out of date as far as paragraph 49 NPPF is concerned, but the weight to be given to them in the balancing exercise will be reduced, in the absence of a five-year housing land supply Paragraph 49 of the NPPF states that 'policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five-year supply of deliverable sites'. The Court of Appeal stated that 'policies for the supply of housing' should be given a wide interpretation: policies that affect the supply of housing and not just polices that are expressly related to housing supply such as the allocation of sites. Both Suffolk Coastal District Council and Cheshire East Borough Council appealed this decision to the Supreme Court, arguing that the proper interpretation of paragraph 49 is a narrow interpretation that concerns itself only with polices that are directly concerned with the supply of housing. The Supreme Court has dismissed these appeals. The Supreme Court justices agreed that paragraph 49 NPPF should have a narrow meaning but that the absence of a five-year housing supply has a wider effect in the planning balancing exercise, one that goes beyond that narrow ambit. The Court stated that the paragraph 14 NPPF presumption in favour of sustainable development is brought into play in the absence of a five-year housing land supply. This means that whether or not policies are paragraph 49 out of date policies, it is a matter of planning judgment as to the weight that these policies are to be given. That judgement should be exercised free of any overly legalistic approach to the NPPF, but subject to normal judicial oversight and, for housing developments, the overreaching need to boost the supply of housing (paragraph 47 NPPF). The issues The main issue at stake in these cases was the interpretation of paragraph 49 of the NPPF: 'Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.' The cases were concerned with what should be construed as a relevant policy for the supply of housing. Should paragraph 49 have a narrow construction? That the policy must in effect state that it is specifically concerned with the supply of housing (for instance site allocation policies) to be out of date in the absence of a five-year housing land supply. Or, should it have a wide construction? That any policy that has an effect on the supply of housing (for instance a generic countryside protection policy) is covered by it. The Supreme Court judgment While the Supreme Court justices have stated that paragraph 49 should have the narrow construction set out above, they have also stated that the effect of the absence or otherwise of a five-year housing supply goes further. The question of whether a policy is a paragraph 49 out of date policy is not determinative of the application of the presumption in favour of sustainable development or the paragraph 47 entreaty to boost the supply of housing. It is merely one aspect of the planning balancing exercise. In giving the Leading judgment Lord Carnworth states at paragraph 59: 'This may be regarded as adopting the 'narrow' meaning, contrary to the conclusion of the Court of Appeal. However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within the expression. The important question is not how to define individual policies, but whether the result is a five-year supply in accordance with the objectives set by paragraph 47. If there is a failure in that respect, it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the over-restrictive nature of other non-housing policies. The shortfall is enough to trigger the operation of the second part of paragraph 14. As the Court of Appeal recognised, it is that paragraph, not paragraph 49, which provides the substantive advice by reference to which the development plan policies and other material considerations relevant to the application are expected to be assessed.' The effect of the judgment Questions over the absence or otherwise of a five-year housing supply are still very significant but paragraph 49 is not the determinative part of the NPPF. The absence of such a supply will mean that policies (narrow interpretation) for the supply of housing will be out of date. Other policies that have the effect of restricting the supply of housing will arguably, applying paragraph 14 of the NPPF and in the context of paragraph 47, have, in the planning balancing exercise, reduced weight depending on the extent of the five-year supply deficit and the significance of those policies. For applications and appeals this may mean little more than a change in language. Policies that fall within paragraph 49 in the absence of a five-year housing land supply should still be referred to as being out of date and the weight to be given to them consequently diminished. Other policies that restrict the supply of housing will not be out of date but the weight to be given to them will need to be balanced against the paragraph 47 NPPF entreaty to boost the supply of housing and the presumption in favour of sustainable development in paragraph 14 NPPF. Importantly Lord Gill makes the point that the balancing exercise applies to all policies including, for instance, green belt policies. This provides welcome clarification that the paragraph 14 presumption applies even if the land is subject to the restrictive policies mentioned in footnote 9 to paragraph 14. The reverse is often argued. As above, the weight to be given to these policies is all part of the planning balancing exercise but, as Lord Gill states at paragraph 83, '[i]f a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated'. This is a clear entreaty to planning authorities to give serious weight to the guidance set out in the Framework over a rigorous adherence to policies, even if they are restrictive footnote 9 policies such as green belt. Such policies must be considered in the balancing exercise and potentially given less weight than is often the case now. This does not mean that local planning authorities or inspectors hearing appeals can make arbitrary decisions on the weight to be given to policies or that the interpretation of those policies is not a matter of law, but it does move away from the legalistic approach that was being taken to whether policies fall under paragraph 49 NPPF as out of date or not and the effect of such a decision. The decision, by putting the question over the 'class of policy' to one side in favour of a planning balancing exercise in respect of all policies that affect housing development, whether they are out of date or not, is likely to mean that there are less legal challenges. Not a bad result, even for lawyers. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{DFD77390-E5AC-4095-8F17-B6290B04A828}https://www.shoosmiths.co.uk/client-resources/legal-updates/a-knotty-problem-12778.aspxA Knotty problem A recent court decision has highlighted the risks to landowners with Japanese Knotweed on their land of allowing it to spread to adjoining land, or even allowing it to grow close to boundaries with adjoining land. Japanese Knotweed is an invasive non-native species of plant that was introduced into the UK in the 19th century as an ornamental garden plant. It is now a significant problem across the UK. It can cause considerable damage to buildings and infrastructure. The government estimates that the costs of eradicating it across the UK would be £2.6bn. A recent ruling in the Cardiff County Court in two joined cases involving the owners of two residential properties in South Wales and Network Rail Infrastructure Limited (Network Rail) has highlighted the impact of Japanese Knotweed on property values and the importance for landowners and occupiers of properly managing Japanese Knotweed on their land. The two claimants, Mr Williams and Mr Waistell, owned two adjoining semi-detached bungalows in Maesteg, South Wales, adjacent to an access path owned by Network Rail leading to a railway embankment. A large stand of Japanese Knotweed had been growing on Network Rail's land for at least 50 years. The claims Mr Williams and Mr Waistell each sued Network Rail for private nuisance. They claimed that the Japanese Knotweed on Network Rail's land had either encroached on their land or grown within close proximity of their land, in each case resulting in a diminution in the value of their respective properties. They claimed that even if the Japanese Knotweed was treated, the price that they could obtain on the sale of their properties would be diminished, and claimed an injunction requiring Network Rail to treat and eliminate the Japanese Knotweed on its land, and damages for the diminution in the value of their respective properties. The court's ruling The court found that, on the evidence, there was no proof of damage to the claimants' properties, so their claims for encroachment failed. However, it found that the presence of the Japanese Knotweed on Network Rail's land amounted to an unlawful interference with their quiet enjoyment or amenity of their property. It ruled that the amenity value of a property can include the ability to dispose of it at a proper value and the evidence was that, even if the Japanese Knotweed was treated, the values of the claimants' properties were below the normal market value. Once the court had established that the presence of the Japanese Knotweed on Network Rail's land could amount to an unlawful interference with the claimants' quiet enjoyment of their respective properties, it then had to consider: (1) whether Network Rail had knowledge of the nuisance caused by the Japanese Knotweed and (2) whether it had acted reasonably in preventing or minimising the known risk of damage to the claimants' properties. Network Rail admitted that it had knowledge of the presence of the Japanese Knotweed on its land, but it denied that its knowledge imposed any duty on it to eradicate or otherwise remove the Japanese Knotweed prior to receiving complaints from the claimants in 2013. The court disagreed, on the basis of guidance on managing Japanese Knotweed published by the RICS and the Property Care Association in 2012/2013. Although Network Rail had undertaken some treatment of the Japanese Knotweed between 2013 and 2016 (including spraying it with herbicide), the court found that treatment to have been inadequate. The claimants initially sought an injunction requiring Network Rail to eradicate the Japanese Knotweed on its land, but they subsequently changed their minds and sought damages to pay for treatment with an insurance-backed guarantee instead, as they were not satisfied that Network Rail would treat the Japanese Knotweed properly. The court therefore awarded Mr Williams £16,420 in damages for the cost of a treatment programme and insurance backed-guarantee, the residual diminution in value of his property after treatment, miscellaneous loss and general damages. It awarded Mr Waistell £14,620 for the cost of a treatment programme and insurance-backed guarantee, the cost of a Japanese Knotweed survey and the residual diminution in value of his property after treatment. Comment As a County Court decision, the case is not binding precedent, but there is no reason why it should not be followed in similar cases, as it is based on the principles of private nuisance set out in the leading High Court, Court of Appeal, House of Lords and Supreme Court cases. It may be fact-specific, but it also appears from the court's comments that the claimants would have succeeded in their encroachment claims if the Japanese Knotweed had actually caused physical damage to their properties. Apart from the obvious risk of a private nuisance claim such as in this case, what are the other considerations for owners and occupiers of land with Japanese Knotweed growing on it? As an owner or occupier of land, it is your responsibility to deal with any Japanese Knotweed growing on it. Do not allow Japanese Knotweed to spread outside your land - causing it to grow in the wild is an offence under the Wildlife and Countryside Act 1981, carrying maximum penalties of an unlimited fine and two years' imprisonment. Allowing it to spread to an adjoining property may also amount to a statutory nuisance, giving the local authority a power to serve an 'abatement notice' requiring it to be controlled. Breach of an abatement notice is an offence. Environmental regulators now have powers to serve 'species control orders' on landowners and occupiers requiring them to control Japanese Knotweed on their land. Breaching a species control order is also an offence. When treating Japanese Knotweed, there are a number of regulatory issues to consider - for example, only approved herbicides may be used and there are strict controls on the management of Japanese Knotweed waste. The safest solution is to use a competent contractor who can provide an insurance-backed guarantee. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 02 May 2017 00:00:00 +0100<![CDATA[Angus Evers Joanne Sear ]]><![CDATA[ A recent court decision has highlighted the risks to landowners with Japanese Knotweed on their land of allowing it to spread to adjoining land, or even allowing it to grow close to boundaries with adjoining land. Japanese Knotweed is an invasive non-native species of plant that was introduced into the UK in the 19th century as an ornamental garden plant. It is now a significant problem across the UK. It can cause considerable damage to buildings and infrastructure. The government estimates that the costs of eradicating it across the UK would be £2.6bn. A recent ruling in the Cardiff County Court in two joined cases involving the owners of two residential properties in South Wales and Network Rail Infrastructure Limited (Network Rail) has highlighted the impact of Japanese Knotweed on property values and the importance for landowners and occupiers of properly managing Japanese Knotweed on their land. The two claimants, Mr Williams and Mr Waistell, owned two adjoining semi-detached bungalows in Maesteg, South Wales, adjacent to an access path owned by Network Rail leading to a railway embankment. A large stand of Japanese Knotweed had been growing on Network Rail's land for at least 50 years. The claims Mr Williams and Mr Waistell each sued Network Rail for private nuisance. They claimed that the Japanese Knotweed on Network Rail's land had either encroached on their land or grown within close proximity of their land, in each case resulting in a diminution in the value of their respective properties. They claimed that even if the Japanese Knotweed was treated, the price that they could obtain on the sale of their properties would be diminished, and claimed an injunction requiring Network Rail to treat and eliminate the Japanese Knotweed on its land, and damages for the diminution in the value of their respective properties. The court's ruling The court found that, on the evidence, there was no proof of damage to the claimants' properties, so their claims for encroachment failed. However, it found that the presence of the Japanese Knotweed on Network Rail's land amounted to an unlawful interference with their quiet enjoyment or amenity of their property. It ruled that the amenity value of a property can include the ability to dispose of it at a proper value and the evidence was that, even if the Japanese Knotweed was treated, the values of the claimants' properties were below the normal market value. Once the court had established that the presence of the Japanese Knotweed on Network Rail's land could amount to an unlawful interference with the claimants' quiet enjoyment of their respective properties, it then had to consider: (1) whether Network Rail had knowledge of the nuisance caused by the Japanese Knotweed and (2) whether it had acted reasonably in preventing or minimising the known risk of damage to the claimants' properties. Network Rail admitted that it had knowledge of the presence of the Japanese Knotweed on its land, but it denied that its knowledge imposed any duty on it to eradicate or otherwise remove the Japanese Knotweed prior to receiving complaints from the claimants in 2013. The court disagreed, on the basis of guidance on managing Japanese Knotweed published by the RICS and the Property Care Association in 2012/2013. Although Network Rail had undertaken some treatment of the Japanese Knotweed between 2013 and 2016 (including spraying it with herbicide), the court found that treatment to have been inadequate. The claimants initially sought an injunction requiring Network Rail to eradicate the Japanese Knotweed on its land, but they subsequently changed their minds and sought damages to pay for treatment with an insurance-backed guarantee instead, as they were not satisfied that Network Rail would treat the Japanese Knotweed properly. The court therefore awarded Mr Williams £16,420 in damages for the cost of a treatment programme and insurance backed-guarantee, the residual diminution in value of his property after treatment, miscellaneous loss and general damages. It awarded Mr Waistell £14,620 for the cost of a treatment programme and insurance-backed guarantee, the cost of a Japanese Knotweed survey and the residual diminution in value of his property after treatment. Comment As a County Court decision, the case is not binding precedent, but there is no reason why it should not be followed in similar cases, as it is based on the principles of private nuisance set out in the leading High Court, Court of Appeal, House of Lords and Supreme Court cases. It may be fact-specific, but it also appears from the court's comments that the claimants would have succeeded in their encroachment claims if the Japanese Knotweed had actually caused physical damage to their properties. Apart from the obvious risk of a private nuisance claim such as in this case, what are the other considerations for owners and occupiers of land with Japanese Knotweed growing on it? As an owner or occupier of land, it is your responsibility to deal with any Japanese Knotweed growing on it. Do not allow Japanese Knotweed to spread outside your land - causing it to grow in the wild is an offence under the Wildlife and Countryside Act 1981, carrying maximum penalties of an unlimited fine and two years' imprisonment. Allowing it to spread to an adjoining property may also amount to a statutory nuisance, giving the local authority a power to serve an 'abatement notice' requiring it to be controlled. Breach of an abatement notice is an offence. Environmental regulators now have powers to serve 'species control orders' on landowners and occupiers requiring them to control Japanese Knotweed on their land. Breaching a species control order is also an offence. When treating Japanese Knotweed, there are a number of regulatory issues to consider - for example, only approved herbicides may be used and there are strict controls on the management of Japanese Knotweed waste. The safest solution is to use a competent contractor who can provide an insurance-backed guarantee. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{0AB2956C-3F1F-4E97-B8D1-C903895864B4}https://www.shoosmiths.co.uk/client-resources/legal-updates/government-quashing-decision-aylesbury-estate-cpo-12781.aspxGovernment agrees to quashing of decision on Aylesbury Estate CPO Sajid Javid's controversial decision last September to refuse to confirm the London Borough of Southwark's request for compulsory purchase powers on human rights grounds caused ripples to run through the CPO profession. Javid ruled that Southwark's compulsory purchase order would breach the human rights of eight leaseholders on the Aylesbury Estate in Southwark, as it was likely to force them to either move away or face financial hardship. The council brought a challenge to the decision and had serious concerns about the impact of the decision to block the CPO, saying it 'could signal the end of the regeneration of the estate and similar projects across London'. The plans for the regeneration of the Aylesbury Estate are critical to Southwark, providing for 3,500 new homes, 50 per cent of which would be affordable. In a statement, the council confirmed that they have now been notified by the government that it would 'consent to judgement and ask the Court to quash his decision not to confirm the Compulsory Purchase Order for the remaining properties in Phase 1 of the regeneration'. The decision should therefore now be quashed, however this isn't the end of the road for Southwark. Following the quashing, which still has to be signed off by the Court, the Secretary of State will arrange a new public inquiry on the CPO 'to be held as soon as practicable'. This outcome will be welcomed by local authorities carrying out housing estate regeneration, with the redetermined decision likely to be closely followed by all in the profession. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.Tue, 02 May 2017 00:00:00 +0100<![CDATA[Dan Murphy ]]><![CDATA[ Sajid Javid's controversial decision last September to refuse to confirm the London Borough of Southwark's request for compulsory purchase powers on human rights grounds caused ripples to run through the CPO profession. Javid ruled that Southwark's compulsory purchase order would breach the human rights of eight leaseholders on the Aylesbury Estate in Southwark, as it was likely to force them to either move away or face financial hardship. The council brought a challenge to the decision and had serious concerns about the impact of the decision to block the CPO, saying it 'could signal the end of the regeneration of the estate and similar projects across London'. The plans for the regeneration of the Aylesbury Estate are critical to Southwark, providing for 3,500 new homes, 50 per cent of which would be affordable. In a statement, the council confirmed that they have now been notified by the government that it would 'consent to judgement and ask the Court to quash his decision not to confirm the Compulsory Purchase Order for the remaining properties in Phase 1 of the regeneration'. The decision should therefore now be quashed, however this isn't the end of the road for Southwark. Following the quashing, which still has to be signed off by the Court, the Secretary of State will arrange a new public inquiry on the CPO 'to be held as soon as practicable'. This outcome will be welcomed by local authorities carrying out housing estate regeneration, with the redetermined decision likely to be closely followed by all in the profession. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.]]>{60567423-CE7B-45C9-B372-FF8AE5C8121B}https://www.shoosmiths.co.uk/client-resources/legal-updates/sustainability-in-the-housing-white-paper-an-afterthought-12535.aspxSustainability in the Housing White Paper - an afterthought? The Housing White Paper contains little mention of the environmental and wider sustainability impacts of the scale of development it envisages, until the very end. Surprisingly, it also contains some further policy proposals for onshore wind energy, which do not seem to have any direct relevance to housing. Tucked away at the back of the Housing White Paper (White Paper) are three pages dealing with various issues relating to 'Sustainable development and the environment' in the context of the National Planning Policy Framework (NPPF) - the meaning of 'sustainable development', climate change factors, flood risk, noise impacts on new developments and onshore wind energy. The fact that these issues are only addressed in the last three pages of the White Paper suggests that the government does not want them to stand in the way of delivering new housing, although it is of course the case that any significant new housing developments and related infrastructure will require environmental impact assessment as part of the planning process. Sustainable development There has been much debate over what ''sustainable development' actually means and a range of different definitions exist. The NPPF contains a presumption in favour of sustainable development, but without actually defining what it means. The government is therefore proposing to amend the NPPF to make it clear that sustainable development has 3 dimensions - economic, social and environmental - and that those dimensions, together with the core planning principles and policies contained in the NPPF, together constitute the government's view of what the term 'sustainable development' means in the context of the English planning system. While this clarification may seem welcome, it does risk creating an approach whereby sustainable development means whatever the government says it means in the NPPF, rather than any of the other generally accepted definitions for the term (such as the 'Brundtland' definition). Climate change The NPPF already requires local planning authorities to consider and address a range of climate change impacts such as flood risk, coastal change, and water supply and demand considerations. However, the White Paper proposes adding rising temperatures to the list of factors that local planning authorities must consider in plan-making and making it clear that local planning policies should support measures for the future resilience of communities and infrastructure to climate change. Both these changes focus on adaptation to climate change, which seems sensible given the inevitability of rising temperatures. Flooding One of the consequences of climate change is an increased risk of flooding. Large-scale housing development is likely to exacerbate this risk unless it is managed through the application of robust policies to protect both new and existing developments from flooding. The White Paper therefore proposes amending the NPPF to clarify the application of the 'Exception Test', to tighten up the requirements for minor developments and changes of use as regards flood risk impact, and to require local plans to address cumulative flood risks resulting from the combined impacts of a number of new, but separate, developments in or affecting areas susceptible to flooding. Again, these proposals seem sensible, but it remains to be seen how they would be applied by local planning authorities under pressure to achieve higher housing delivery targets. Noise There have been a number of high profile cases, particularly in London, where concerns have been raised about the impact on existing uses (mainly entertainment uses) of new residential development. Although the NPPF and the Planning Practice Guidance incorporate elements of the 'agent of change' principle in relation to noise, this has not always prevented residents in new developments from complaining about noise from existing developments. The White Paper proposes amending the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development, but without some wider changes to the law, such as the common law and statutory nuisance regimes, it is unlikely that this issue is going to be addressed satisfactorily. Onshore wind energy Surprisingly, the final page of the White Paper sets out a proposal to incorporate into the NPPF the government's Written Ministerial Statement of 18 June 2015 setting out new planning considerations for onshore wind energy applications involving one or more wind turbines, without a transitional period. The government claims that this does not represent a change in policy, but it is likely that the policy will carry more weight if included in the NPPF than if set out in a Written Ministerial Statement. It is difficult to see what relevance this proposal has to housing and, looking at it cynically, it looks like the government is trying to sneak through the change in the White Paper in the hope that onshore wind developers do not notice it. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Mon, 27 Feb 2017 00:00:00 Z<![CDATA[Angus Evers ]]><![CDATA[ The Housing White Paper contains little mention of the environmental and wider sustainability impacts of the scale of development it envisages, until the very end. Surprisingly, it also contains some further policy proposals for onshore wind energy, which do not seem to have any direct relevance to housing. Tucked away at the back of the Housing White Paper (White Paper) are three pages dealing with various issues relating to 'Sustainable development and the environment' in the context of the National Planning Policy Framework (NPPF) - the meaning of 'sustainable development', climate change factors, flood risk, noise impacts on new developments and onshore wind energy. The fact that these issues are only addressed in the last three pages of the White Paper suggests that the government does not want them to stand in the way of delivering new housing, although it is of course the case that any significant new housing developments and related infrastructure will require environmental impact assessment as part of the planning process. Sustainable development There has been much debate over what ''sustainable development' actually means and a range of different definitions exist. The NPPF contains a presumption in favour of sustainable development, but without actually defining what it means. The government is therefore proposing to amend the NPPF to make it clear that sustainable development has 3 dimensions - economic, social and environmental - and that those dimensions, together with the core planning principles and policies contained in the NPPF, together constitute the government's view of what the term 'sustainable development' means in the context of the English planning system. While this clarification may seem welcome, it does risk creating an approach whereby sustainable development means whatever the government says it means in the NPPF, rather than any of the other generally accepted definitions for the term (such as the 'Brundtland' definition). Climate change The NPPF already requires local planning authorities to consider and address a range of climate change impacts such as flood risk, coastal change, and water supply and demand considerations. However, the White Paper proposes adding rising temperatures to the list of factors that local planning authorities must consider in plan-making and making it clear that local planning policies should support measures for the future resilience of communities and infrastructure to climate change. Both these changes focus on adaptation to climate change, which seems sensible given the inevitability of rising temperatures. Flooding One of the consequences of climate change is an increased risk of flooding. Large-scale housing development is likely to exacerbate this risk unless it is managed through the application of robust policies to protect both new and existing developments from flooding. The White Paper therefore proposes amending the NPPF to clarify the application of the 'Exception Test', to tighten up the requirements for minor developments and changes of use as regards flood risk impact, and to require local plans to address cumulative flood risks resulting from the combined impacts of a number of new, but separate, developments in or affecting areas susceptible to flooding. Again, these proposals seem sensible, but it remains to be seen how they would be applied by local planning authorities under pressure to achieve higher housing delivery targets. Noise There have been a number of high profile cases, particularly in London, where concerns have been raised about the impact on existing uses (mainly entertainment uses) of new residential development. Although the NPPF and the Planning Practice Guidance incorporate elements of the 'agent of change' principle in relation to noise, this has not always prevented residents in new developments from complaining about noise from existing developments. The White Paper proposes amending the NPPF to emphasise that planning policies and decisions should take account of existing businesses and other organisations and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development, but without some wider changes to the law, such as the common law and statutory nuisance regimes, it is unlikely that this issue is going to be addressed satisfactorily. Onshore wind energy Surprisingly, the final page of the White Paper sets out a proposal to incorporate into the NPPF the government's Written Ministerial Statement of 18 June 2015 setting out new planning considerations for onshore wind energy applications involving one or more wind turbines, without a transitional period. The government claims that this does not represent a change in policy, but it is likely that the policy will carry more weight if included in the NPPF than if set out in a Written Ministerial Statement. It is difficult to see what relevance this proposal has to housing and, looking at it cynically, it looks like the government is trying to sneak through the change in the White Paper in the hope that onshore wind developers do not notice it. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{FD3E7B3D-5214-41BF-83BD-2CD036D2F126}https://www.shoosmiths.co.uk/client-resources/legal-updates/enhanced-compensation-light-at-the-end-of-hs2-tunnel-12529.aspxEnhanced Compensation - Is there light at the end of the HS2 tunnel? The Supreme Court handed down its judgement in the case of Bloor Homes (Wilmslow) Limited v Homes and Communities Agency on 22 February. The case concerns the assessment of compensation for compulsory acquisition of two parcels of grazing land (the 'reference land') forming part of a much larger area acquired pursuant to a compulsory purchase order ('CPO') by the North West Development Agency. The land was required for the development of the Kingsway Business Park (the 'KBP'). The area in and around the KBP had a long planning history, with its potential for development having been recognised since the 1960s. As a general principle, land which is subject to a CPO will be assessed disregarding any increase or decrease in value which is solely attributable to the development scheme to which it relates. This is known as the Pointe-Gourde or 'no-scheme' rule. However, the law recognises that in certain circumstances, 'planning assumptions' should be made which allows for an assessment of enhanced compensation based on 'hope value'. In other words, the likelihood or otherwise that planning permission would have been granted for development in the absence of the scheme underpinning the CPO. In the Upper Tribunal, the claimant's assessment of compensation was £2,593,000 on the basis that the reference land had significant potential for residential development, independent of the scheme of acquisition. Responsibility for the payment of compensation to the claimant sat with the Homes and Communities Agency. They argued that the claim should be limited to the existing use value of the reference land as agricultural land, with that value being assessed as approximately £50,000. The Upper Tribunal found for the claimant in part, awarding compensation in the sum of £746,000 on the basis that there would have been a 50/50 chance of planning permission being obtained for residential development on the reference land in the 'no-KBP world'. The HCA appealed, but the Court of Appeal rejected the arguments put by both parties and remitted the issue for re-determination on an alternative basis. The Court of Appeal treated the required disregard of the KBP scheme as extending to all planning policies, past and present, which supported development on the reference land. In other words, the planning potential of the reference land was to be assessed 'without regard to the development scheme and its underlying policies'. Following a further appeal, the Supreme Court unanimously restored the Upper Tribunal's decision. The Supreme Court concluded: the Upper Tribunal was entitled to regard those planning policies which lent support to the development of the reference land as potentially relevant, notwithstanding the required disregard of the KBP scheme; the assessment of the significance of such policies in the 'no-KBP world' was a matter for the Tribunal; and the planning status of the relevant land was not conclusively fixed by the statutory 'planning assumptions' - they operate in favour of a claimant and cannot be applied so as to deprive a claimant of his/her right to argue for future 'hope value' under other statutory provisions or the general law. The Supreme Court acknowledged that the Pointe-Gourde rule, when applied, may result in changes to the planning status of the land under consideration. In addition, there is nothing within Section 6 of the Land Compensation Act 1961 which dictates that a more restrictive approach is required to be taken in respect of the statutory disregards. As such, it confirmed what has long been accepted by practitioners - that the application of the general law may produce a result more favourable to the claimant in compensation terms than the statutory assumptions. In its judgement, the Supreme Court recognised the 'substantial controversy and difficulty in practice' which the 'no-scheme' rule has given rise to and expressed a hope that the amendments currently before Parliament in the form of the Neighbourhood Planning Bill will achieve their stated aim of 'clarifying the principles and assumptions for the 'no-scheme' world'. The Supreme Court's decision is also particularly timely given that the HS2 Bill received Royal Assent on 23 February. The owners of the many acres of agricultural land located along the HS2 route (which absent the HS2 scheme has the potential for development of one form or another) should take note of this important decision and speak to their professional advisors as a matter of urgency to discuss, and/or potentially re-open discussions, with HS2 Ltd on the level of compensation payable for the compulsory acquisition of their land. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Fri, 24 Feb 2017 00:00:00 Z<![CDATA[Sam Grange ]]><![CDATA[ The Supreme Court handed down its judgement in the case of Bloor Homes (Wilmslow) Limited v Homes and Communities Agency on 22 February. The case concerns the assessment of compensation for compulsory acquisition of two parcels of grazing land (the 'reference land') forming part of a much larger area acquired pursuant to a compulsory purchase order ('CPO') by the North West Development Agency. The land was required for the development of the Kingsway Business Park (the 'KBP'). The area in and around the KBP had a long planning history, with its potential for development having been recognised since the 1960s. As a general principle, land which is subject to a CPO will be assessed disregarding any increase or decrease in value which is solely attributable to the development scheme to which it relates. This is known as the Pointe-Gourde or 'no-scheme' rule. However, the law recognises that in certain circumstances, 'planning assumptions' should be made which allows for an assessment of enhanced compensation based on 'hope value'. In other words, the likelihood or otherwise that planning permission would have been granted for development in the absence of the scheme underpinning the CPO. In the Upper Tribunal, the claimant's assessment of compensation was £2,593,000 on the basis that the reference land had significant potential for residential development, independent of the scheme of acquisition. Responsibility for the payment of compensation to the claimant sat with the Homes and Communities Agency. They argued that the claim should be limited to the existing use value of the reference land as agricultural land, with that value being assessed as approximately £50,000. The Upper Tribunal found for the claimant in part, awarding compensation in the sum of £746,000 on the basis that there would have been a 50/50 chance of planning permission being obtained for residential development on the reference land in the 'no-KBP world'. The HCA appealed, but the Court of Appeal rejected the arguments put by both parties and remitted the issue for re-determination on an alternative basis. The Court of Appeal treated the required disregard of the KBP scheme as extending to all planning policies, past and present, which supported development on the reference land. In other words, the planning potential of the reference land was to be assessed 'without regard to the development scheme and its underlying policies'. Following a further appeal, the Supreme Court unanimously restored the Upper Tribunal's decision. The Supreme Court concluded: the Upper Tribunal was entitled to regard those planning policies which lent support to the development of the reference land as potentially relevant, notwithstanding the required disregard of the KBP scheme; the assessment of the significance of such policies in the 'no-KBP world' was a matter for the Tribunal; and the planning status of the relevant land was not conclusively fixed by the statutory 'planning assumptions' - they operate in favour of a claimant and cannot be applied so as to deprive a claimant of his/her right to argue for future 'hope value' under other statutory provisions or the general law. The Supreme Court acknowledged that the Pointe-Gourde rule, when applied, may result in changes to the planning status of the land under consideration. In addition, there is nothing within Section 6 of the Land Compensation Act 1961 which dictates that a more restrictive approach is required to be taken in respect of the statutory disregards. As such, it confirmed what has long been accepted by practitioners - that the application of the general law may produce a result more favourable to the claimant in compensation terms than the statutory assumptions. In its judgement, the Supreme Court recognised the 'substantial controversy and difficulty in practice' which the 'no-scheme' rule has given rise to and expressed a hope that the amendments currently before Parliament in the form of the Neighbourhood Planning Bill will achieve their stated aim of 'clarifying the principles and assumptions for the 'no-scheme' world'. The Supreme Court's decision is also particularly timely given that the HS2 Bill received Royal Assent on 23 February. The owners of the many acres of agricultural land located along the HS2 route (which absent the HS2 scheme has the potential for development of one form or another) should take note of this important decision and speak to their professional advisors as a matter of urgency to discuss, and/or potentially re-open discussions, with HS2 Ltd on the level of compensation payable for the compulsory acquisition of their land. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{6CE427EB-132A-42D7-9898-9B7B3B1EAB15}https://www.shoosmiths.co.uk/news/press-releases/first-housing-white-paper-appeal-granted-secretary-state-12498.aspxFirst post housing white paper planning appeal granted by secretary of state National law firm Shoosmiths has advised IM Land on securing a successful planning appeal for a major residential and mixed-use scheme, the first to be approved since the publishing of the government's housing white paper. Plans to build 750 new homes at Curborough, near Lichfield, have been approved by Secretary of State for Communities and Local Government Sajid Javid. The first planning appeal to be approved since the government released its updated planning guidelines earlier this month, the plans utilise agricultural land that lies outside the Green Belt in line with the terms of the white paper. The community plans include a primary school, care village, retail units, a community centre and public open spaces with around 30% of the new development earmarked for affordable housing. Shoosmiths' team was led by planning partner Tim Willis and senior associate Anna Cartledge with trainee solicitor Emma Cartledge assisting. The team advised on the complex legal aspects of the appeal including progressing the planning appeal while dealing with the inter-related issues of challenging the local plan process and the implications of HS2 on the site. Jonathan Dyke, IM Land's strategic land director commented: 'We are extremely pleased with this appeal decision. We have worked closely with the local communities and government to address any concerns and ensure that the new development will benefit and enhance the local area and provide much needed housing. 'The team at Shoosmiths have been integral in securing the success of this appeal. Their responsiveness and proactive attitude combined with expert legal advice and hard work in dealing with the complex legal matters has greatly contributed to the timely success of this appeal.' Tim Willis, added: 'We are thrilled at this decision on behalf of our client. Years of negotiations has led to the go ahead of this community development and the numerous benefits it will bring to the region. We look forward to continuing to support IM Land on this and similar developments in future.' Wed, 15 Feb 2017 00:00:00 Z<![CDATA[Tim Willis ]]><![CDATA[ National law firm Shoosmiths has advised IM Land on securing a successful planning appeal for a major residential and mixed-use scheme, the first to be approved since the publishing of the government's housing white paper. Plans to build 750 new homes at Curborough, near Lichfield, have been approved by Secretary of State for Communities and Local Government Sajid Javid. The first planning appeal to be approved since the government released its updated planning guidelines earlier this month, the plans utilise agricultural land that lies outside the Green Belt in line with the terms of the white paper. The community plans include a primary school, care village, retail units, a community centre and public open spaces with around 30% of the new development earmarked for affordable housing. Shoosmiths' team was led by planning partner Tim Willis and senior associate Anna Cartledge with trainee solicitor Emma Cartledge assisting. The team advised on the complex legal aspects of the appeal including progressing the planning appeal while dealing with the inter-related issues of challenging the local plan process and the implications of HS2 on the site. Jonathan Dyke, IM Land's strategic land director commented: 'We are extremely pleased with this appeal decision. We have worked closely with the local communities and government to address any concerns and ensure that the new development will benefit and enhance the local area and provide much needed housing. 'The team at Shoosmiths have been integral in securing the success of this appeal. Their responsiveness and proactive attitude combined with expert legal advice and hard work in dealing with the complex legal matters has greatly contributed to the timely success of this appeal.' Tim Willis, added: 'We are thrilled at this decision on behalf of our client. Years of negotiations has led to the go ahead of this community development and the numerous benefits it will bring to the region. We look forward to continuing to support IM Land on this and similar developments in future.' ]]>{05622114-C263-4C19-AA4F-6735D6315D32}https://www.shoosmiths.co.uk/client-resources/legal-updates/planning-permission-housing-white-paper-2017-12461.aspx&#39;People cannot live in a planning permission&#39;- Housing White Paper 2017 The Secretary of State for Communities and Local Government, Sajid Javid, unveiled the much anticipated Housing White Paper ('HWP'), today. As many predicted, it is a mixture of 'carrots and sticks' designed to fix the 'broken housing market'. The clear message is that the problem won't solve itself. It requires government intervention, but it will also need '...partnership between central and local government and developers'. In essence the government will provide the support to enhance the capacity of local authorities and industry to build the new homes this country needs. In return it is expected that professions and institutions '.play their part and turn these proposals into reality'. Some central themes and objectives have emerged from the HWP which seeks to address; Concerns raised by developers, linked to the perceived delays and inefficiencies of the current planning process; Issues arising from delays and uncertainties with the Local Plan process, with more powers to compel councils to produce updated Local Plans based on a 'real' assessment of housing need; Providing council's with additional powers to drive forward consented development schemes; Measures to diversify the housing market and support housing associations and local authorities to build homes as well as introducing new and better protected schemes for rent; Measures (including changes to National Planning Policy) to boost the reuse and redevelopment of brownfield land and increase density of development in urban areas; Confirmation that the Green Belt will continue to be protected from development in the absence of 'exceptional circumstances' which justify its release for housing. The HWP supports the government's commitment to build at least one million homes by 2020. That is 200,000 per annum. However, even this falls short of some calculations which indicate the shortfall in housing is much larger and potentially two million homes. . Even the government's own ambitious target will struggle to keep pace with current demand which requires circa 250-275,000 new homes to be built per annum. To put this in context, only 190,000 homes were built in 2015/16 and the average build rate since the 1970's is 160,000, so the target remains an extremely challenging one. We also now have the potential additional uncertainty over funding and resources that could arise from the impact of Brexit. In that respect the HWP acknowledges that more needs to be done now to invest in and train the construction workforce of the future, so as to address industry concerns over reliance on migrant labour in some areas, such as London and the South East. One of the causes of the failure to achieve a higher build rate is identified as the time and costs incurred in securing planning permission. This is seen as a major impediment to development actually being 'delivered' on site. The HWP seeks to speed this up by: reducing the council's scope for imposing 'pre-development' conditions on planning permissions; increasing planning fees by up to 40% in some areas to ensure that planning departments are adequately staffed. The government will also consult on the introduction of fees for planning appeals to discourage spurious appeals and free up capacity at the Planning Inspectorate; consulting on a standard methodology for calculating 'objectively assessed need' to improve transparency and reduce delay Plan making; taking forward changes to National Policy including strengthening the presumption in favour of sustainable development and introducing a requirement for 'great weight' to be attached to the value of using suitable brownfield land for homes. The government will also examine the options for reforming the system of developer contributions including ensuring direct benefit for communities, and will respond to the independent review and make an announcement at Autumn Budget 2017. The independent review of CIL and its relationship with Section 106 planning obligations, published alongside this White Paper, found that the current system is not as fast, simple, certain or transparent as originally intended. Despite this, the government accepts that 'no one can live in a planning permission'. Therefore, while these tweaks may be welcomed by developers, 'delivery' of housing on any site is reliant upon many other external factors including: impediments to delivery as a result of third party land interests or financial viability; availability of suitably qualified contractors to build the homes required; accessibility to construction materials (Persimmon Homes has invested in its own brick factory to avoid delays encountered in recent years in this respect); the developers commercial assessment of 'the market' and demand within that market; and the potential purchaser's ability to access finance/mortgages for the potential purchase of the homes built These are just some of the fundamental issues which can contribute to reduce the supply of housing land coming forward for development. Ultimately, these are external factors that cannot be addressed adequately or at all by a change in planning policy or process itself and will rely on the co-operation between landowners, local authorities, professions and institutions advocated in the HWP. The 'stick' in the HWP includes provision to: prevent land banking; strengthening local authority powers to serve completion notices or acquire land by compulsory purchase where consented development schemes are not built out within a reasonable timescale; and impose tax/financial penalties to encourage early delivery of schemes. Whether such measures will work in practice will have to be seen. Not least because shareholders in the construction industry will be anxious about any attempt to restrict the number of sites held as part of their investment portfolio. In addition, banks and other investors will be nervous about lending to developers who appear not to have a stream of sites capable of coming forward for development in the future. There is also a tension in the HWP between the government's aspirations for significantly more housing delivery as set out in the HWP and the reiteration of what some see as outdated existing Green Belt protection. The 'exceptional circumstances' test is retained and in fact strengthened by government statements suggesting that other alternatives (presumably brownfield sites), should be looked at first. This rather places Green Belt as a development area of last resort which is clearly not how the Policy has been interpreted to date. This must be seen as a chance lost to get to grips with an issue which has effectively stifled development for many years in areas of high demand for housing which is well related to existing transport links and facilities and where the original purpose of Green Belt designation has long since become redundant. Other headlines include more details about Starter Homes, which will be introduced as a form of Affordable Housing in National Policy. However, the government will not be introducing its proposed mandatory requirement of 20% starter homes on all developments over a certain size. Starter Homes will also be means tested so that they are only available to households with an income of less than £80,000 (£90,000 in London). Surplus government land will also be identified and packaged for sale for housing with local smaller developers being encouraged to take on those sites. A £3 billion fund to help smaller building firms will be made available including support for off-site construction, such as so called 'modular housing' where parts of buildings are assembled in a factory prior to construction on site. Whether the HWP proposals can or will succeed in delivering the extent of the housing needed within the aspirational timescale is debatable. However, the HWP does feed into a wider discussion in the residential industry about just how government targets are to be achieved, the nature of that provision and where that will take place. Inevitably this must involve further conversations about Green Belt land and how central government can intervene financially to unlock 'difficult' sites or those where there are clear impediments to development such as contaminated sites or areas of low demand. Further in-depth briefings on these and other specific topics in the HWP are being prepared by the Shoosmiths planning and residential teams and will be available on our website soon. The HWP consultation will run for 12 weeks and will close on 2 May 2017. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Tue, 07 Feb 2017 00:00:00 Z<![CDATA[Tim Willis ]]><![CDATA[ The Secretary of State for Communities and Local Government, Sajid Javid, unveiled the much anticipated Housing White Paper ('HWP'), today. As many predicted, it is a mixture of 'carrots and sticks' designed to fix the 'broken housing market'. The clear message is that the problem won't solve itself. It requires government intervention, but it will also need '...partnership between central and local government and developers'. In essence the government will provide the support to enhance the capacity of local authorities and industry to build the new homes this country needs. In return it is expected that professions and institutions '.play their part and turn these proposals into reality'. Some central themes and objectives have emerged from the HWP which seeks to address; Concerns raised by developers, linked to the perceived delays and inefficiencies of the current planning process; Issues arising from delays and uncertainties with the Local Plan process, with more powers to compel councils to produce updated Local Plans based on a 'real' assessment of housing need; Providing council's with additional powers to drive forward consented development schemes; Measures to diversify the housing market and support housing associations and local authorities to build homes as well as introducing new and better protected schemes for rent; Measures (including changes to National Planning Policy) to boost the reuse and redevelopment of brownfield land and increase density of development in urban areas; Confirmation that the Green Belt will continue to be protected from development in the absence of 'exceptional circumstances' which justify its release for housing. The HWP supports the government's commitment to build at least one million homes by 2020. That is 200,000 per annum. However, even this falls short of some calculations which indicate the shortfall in housing is much larger and potentially two million homes. . Even the government's own ambitious target will struggle to keep pace with current demand which requires circa 250-275,000 new homes to be built per annum. To put this in context, only 190,000 homes were built in 2015/16 and the average build rate since the 1970's is 160,000, so the target remains an extremely challenging one. We also now have the potential additional uncertainty over funding and resources that could arise from the impact of Brexit. In that respect the HWP acknowledges that more needs to be done now to invest in and train the construction workforce of the future, so as to address industry concerns over reliance on migrant labour in some areas, such as London and the South East. One of the causes of the failure to achieve a higher build rate is identified as the time and costs incurred in securing planning permission. This is seen as a major impediment to development actually being 'delivered' on site. The HWP seeks to speed this up by: reducing the council's scope for imposing 'pre-development' conditions on planning permissions; increasing planning fees by up to 40% in some areas to ensure that planning departments are adequately staffed. The government will also consult on the introduction of fees for planning appeals to discourage spurious appeals and free up capacity at the Planning Inspectorate; consulting on a standard methodology for calculating 'objectively assessed need' to improve transparency and reduce delay Plan making; taking forward changes to National Policy including strengthening the presumption in favour of sustainable development and introducing a requirement for 'great weight' to be attached to the value of using suitable brownfield land for homes. The government will also examine the options for reforming the system of developer contributions including ensuring direct benefit for communities, and will respond to the independent review and make an announcement at Autumn Budget 2017. The independent review of CIL and its relationship with Section 106 planning obligations, published alongside this White Paper, found that the current system is not as fast, simple, certain or transparent as originally intended. Despite this, the government accepts that 'no one can live in a planning permission'. Therefore, while these tweaks may be welcomed by developers, 'delivery' of housing on any site is reliant upon many other external factors including: impediments to delivery as a result of third party land interests or financial viability; availability of suitably qualified contractors to build the homes required; accessibility to construction materials (Persimmon Homes has invested in its own brick factory to avoid delays encountered in recent years in this respect); the developers commercial assessment of 'the market' and demand within that market; and the potential purchaser's ability to access finance/mortgages for the potential purchase of the homes built These are just some of the fundamental issues which can contribute to reduce the supply of housing land coming forward for development. Ultimately, these are external factors that cannot be addressed adequately or at all by a change in planning policy or process itself and will rely on the co-operation between landowners, local authorities, professions and institutions advocated in the HWP. The 'stick' in the HWP includes provision to: prevent land banking; strengthening local authority powers to serve completion notices or acquire land by compulsory purchase where consented development schemes are not built out within a reasonable timescale; and impose tax/financial penalties to encourage early delivery of schemes. Whether such measures will work in practice will have to be seen. Not least because shareholders in the construction industry will be anxious about any attempt to restrict the number of sites held as part of their investment portfolio. In addition, banks and other investors will be nervous about lending to developers who appear not to have a stream of sites capable of coming forward for development in the future. There is also a tension in the HWP between the government's aspirations for significantly more housing delivery as set out in the HWP and the reiteration of what some see as outdated existing Green Belt protection. The 'exceptional circumstances' test is retained and in fact strengthened by government statements suggesting that other alternatives (presumably brownfield sites), should be looked at first. This rather places Green Belt as a development area of last resort which is clearly not how the Policy has been interpreted to date. This must be seen as a chance lost to get to grips with an issue which has effectively stifled development for many years in areas of high demand for housing which is well related to existing transport links and facilities and where the original purpose of Green Belt designation has long since become redundant. Other headlines include more details about Starter Homes, which will be introduced as a form of Affordable Housing in National Policy. However, the government will not be introducing its proposed mandatory requirement of 20% starter homes on all developments over a certain size. Starter Homes will also be means tested so that they are only available to households with an income of less than £80,000 (£90,000 in London). Surplus government land will also be identified and packaged for sale for housing with local smaller developers being encouraged to take on those sites. A £3 billion fund to help smaller building firms will be made available including support for off-site construction, such as so called 'modular housing' where parts of buildings are assembled in a factory prior to construction on site. Whether the HWP proposals can or will succeed in delivering the extent of the housing needed within the aspirational timescale is debatable. However, the HWP does feed into a wider discussion in the residential industry about just how government targets are to be achieved, the nature of that provision and where that will take place. Inevitably this must involve further conversations about Green Belt land and how central government can intervene financially to unlock 'difficult' sites or those where there are clear impediments to development such as contaminated sites or areas of low demand. Further in-depth briefings on these and other specific topics in the HWP are being prepared by the Shoosmiths planning and residential teams and will be available on our website soon. The HWP consultation will run for 12 weeks and will close on 2 May 2017. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{BC2BE161-851E-431B-A338-02320D62A254}https://www.shoosmiths.co.uk/client-resources/legal-updates/government-confirms-initiatives-to-bolster-housing-12286.aspxGovernment confirms initiatives to bolster the supply of housing The government has confirmed this week that thousands of homes will be built for first time buyers. 30 local planning authorities have been selected to receive part of the government's £1.2 billion Starter Homes Land Fund, established to encourage new developments on brownfield land. The authorities selected span the country and include those in Bristol, Liverpool, Luton, Cheshire and Plymouth. They were chosen on the basis of their ability to deliver the starter homes in accordance with the government's projected timetable. The Starter Homes initiative was first announced by the coalition government in 2014 and there has been some uncertainty regarding exactly what form a starter home will take, and who will be allowed to purchase one. As a consequence, it has taken some time for the product to come to the market. Under the latest initiative it is said that the first sites will begin construction in the latter part of 2017, with the first Starter Homes expected to go on sale in 2018. The housing minister Gavin Barwell reiterated that 'this government is committed to building starter homes to help young first-time buyers get on the housing ladder'. Buyers of Starter Homes need to be between 23 and 40, and they will receive a discount of 20% of the market value of properties worth up to £250,000 outside London or £450,000 in the capital. Given the proposed values of Starter Homes, there remains a question mark regarding whether a starter home can truly be regarded as 'affordable'. While the government is confident on the uptake of the funds it is offering and is optimistic about the delivery of homes and Starter Homes, only time will tell as to the level of uptake and ultimately the levels of delivery of the Starter Homes. The anticipated timetable for delivery of the homes is ambitious given the ongoing challenges facing the house building industry as a whole. In a second announcement the government has revealed the locations for the first wave of 'garden villages' across England. The new garden villages will be located across England and include new developments at Long Marston in Stratford-on-Avon and Oxfordshire Cotswold in West Oxfordshire. Garden Villages are designed to deliver between 1,500 and 10,000 homes, and they will have access to a £6million central fund aimed to supply the expertise required to secure the delivery of these sites. This builds on the government's existing garden towns programme, which has already seen the selection of seven sites for development of more than 10,000 homes. This week's announcement confirmed that there will be three new garden towns built at Aylesbury, Taunton and Harlow &amp; Gilston, and a further £1.4 million of funding has been announced to support their delivery. The announcement anticipates 25,000 housing starts by 2020 in the garden villages and towns. Again, an ambitious target given the issues facing the development industry in terms of securing the delivery of housing. On a final note, the government's White Paper on housing supply is due for release imminently. This will set out the government's initiatives to boost the supply of housing and the indications are that the paper will be likely to focus on a shift away from home ownership towards the rental market. No doubt the white paper will be the source of further interest and debate within the industry. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 05 Jan 2017 00:00:00 Z<![CDATA[Anna Cartledge Emma Cartledge-Taylor ]]><![CDATA[ The government has confirmed this week that thousands of homes will be built for first time buyers. 30 local planning authorities have been selected to receive part of the government's £1.2 billion Starter Homes Land Fund, established to encourage new developments on brownfield land. The authorities selected span the country and include those in Bristol, Liverpool, Luton, Cheshire and Plymouth. They were chosen on the basis of their ability to deliver the starter homes in accordance with the government's projected timetable. The Starter Homes initiative was first announced by the coalition government in 2014 and there has been some uncertainty regarding exactly what form a starter home will take, and who will be allowed to purchase one. As a consequence, it has taken some time for the product to come to the market. Under the latest initiative it is said that the first sites will begin construction in the latter part of 2017, with the first Starter Homes expected to go on sale in 2018. The housing minister Gavin Barwell reiterated that 'this government is committed to building starter homes to help young first-time buyers get on the housing ladder'. Buyers of Starter Homes need to be between 23 and 40, and they will receive a discount of 20% of the market value of properties worth up to £250,000 outside London or £450,000 in the capital. Given the proposed values of Starter Homes, there remains a question mark regarding whether a starter home can truly be regarded as 'affordable'. While the government is confident on the uptake of the funds it is offering and is optimistic about the delivery of homes and Starter Homes, only time will tell as to the level of uptake and ultimately the levels of delivery of the Starter Homes. The anticipated timetable for delivery of the homes is ambitious given the ongoing challenges facing the house building industry as a whole. In a second announcement the government has revealed the locations for the first wave of 'garden villages' across England. The new garden villages will be located across England and include new developments at Long Marston in Stratford-on-Avon and Oxfordshire Cotswold in West Oxfordshire. Garden Villages are designed to deliver between 1,500 and 10,000 homes, and they will have access to a £6million central fund aimed to supply the expertise required to secure the delivery of these sites. This builds on the government's existing garden towns programme, which has already seen the selection of seven sites for development of more than 10,000 homes. This week's announcement confirmed that there will be three new garden towns built at Aylesbury, Taunton and Harlow &amp; Gilston, and a further £1.4 million of funding has been announced to support their delivery. The announcement anticipates 25,000 housing starts by 2020 in the garden villages and towns. Again, an ambitious target given the issues facing the development industry in terms of securing the delivery of housing. On a final note, the government's White Paper on housing supply is due for release imminently. This will set out the government's initiatives to boost the supply of housing and the indications are that the paper will be likely to focus on a shift away from home ownership towards the rental market. No doubt the white paper will be the source of further interest and debate within the industry. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{F569E958-049E-42B5-8D12-5C1114E396FA}https://www.shoosmiths.co.uk/client-resources/legal-updates/will-new-basements-require-planning-permission-12260.aspxWill new basements require planning permission? With space at a premium, particularly in urban areas, the excavation of a basement is one way to extend a house within its existing footprint. The works involved will almost certainly be 'development of land' for which planning permission is required. In Eatherley v London Borough of Camden, the High Court was asked to consider whether such development is permitted under Class A of Part 1 to Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 or whether specific, express grant of planning permission by the local planning authority is required. Class A of the GPDO permits 'the enlargement, improvement or other alteration of a dwellinghouse' subject to certain limitations and conditions. The GDPO is silent as to whether this includes basement extensions, but (by the same token) nothing in the GDPO says that it does not. In the Eatherley case, the defendant council had granted a Certificate of Lawfulness confirming that the excavation of a single storey basement to a terraced house in London was lawful under GDPO. A neighbour challenged that decision. The Court found that the excavation of a basement is capable of falling within Class A. However, it decided that there 'must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse.' The Court found it necessary for the decision maker to consider whether 'as a matter of fact and degree, the single process of making the basement amounts to different activities, each of substance, so that the one is not merely ancillary to the other'. Cranston J considered that 'in the context of an original 'two up two down' terrace house in suburban London...the development of a new basement, when there is nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There is the enlargement, improvement and alteration aspect, but there is potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That is the position, even though the latter is necessary to achieve the developer's aim, indeed is indivisible from it' Cranston J would not be drawn on whether or not (in this particular case) the creation of a basement did amount to two separate activities. This, he decided, was a matter for the planning committee. The council's decision to grant a Certificate of Lawfulness was nevertheless quashed on the basis that the council failed to consider whether the engineering works involved in the creation of the basement constituted a separate activity of substance. 'The council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.' The decision therefore leaves the principal question open to be determined as a matter of fact and degree on a case by case basis. As such, it opens the possibility to local authorities taking enforcement action against basements excavated without express planning permission which, in their view, involve substantive engineering works not permitted under the GDPO. The prudent developer, wanting to avoid such risk, would therefore have to apply for planning permission or for a certificate of lawfulness as in Eatherley. The local authority must also direct itself to consider whether any engineering works involved in the creating the basement constitute a separate activity of substance taking account of the planning implications of the works. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 15 Dec 2016 00:00:00 Z<![CDATA[Matthew Stimson ]]><![CDATA[ With space at a premium, particularly in urban areas, the excavation of a basement is one way to extend a house within its existing footprint. The works involved will almost certainly be 'development of land' for which planning permission is required. In Eatherley v London Borough of Camden, the High Court was asked to consider whether such development is permitted under Class A of Part 1 to Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 or whether specific, express grant of planning permission by the local planning authority is required. Class A of the GPDO permits 'the enlargement, improvement or other alteration of a dwellinghouse' subject to certain limitations and conditions. The GDPO is silent as to whether this includes basement extensions, but (by the same token) nothing in the GDPO says that it does not. In the Eatherley case, the defendant council had granted a Certificate of Lawfulness confirming that the excavation of a single storey basement to a terraced house in London was lawful under GDPO. A neighbour challenged that decision. The Court found that the excavation of a basement is capable of falling within Class A. However, it decided that there 'must be a point where the excavation, underpinning and support for a basement for a dwellinghouse becomes an activity different in character from the enlargement, improvement and alteration of that dwellinghouse.' The Court found it necessary for the decision maker to consider whether 'as a matter of fact and degree, the single process of making the basement amounts to different activities, each of substance, so that the one is not merely ancillary to the other'. Cranston J considered that 'in the context of an original 'two up two down' terrace house in suburban London...the development of a new basement, when there is nothing underneath at present, could well amount, as a question of fact and degree, to two activities, each of substance. There is the enlargement, improvement and alteration aspect, but there is potentially also an engineering aspect of excavating a space and supporting the house and its neighbours. That is the position, even though the latter is necessary to achieve the developer's aim, indeed is indivisible from it' Cranston J would not be drawn on whether or not (in this particular case) the creation of a basement did amount to two separate activities. This, he decided, was a matter for the planning committee. The council's decision to grant a Certificate of Lawfulness was nevertheless quashed on the basis that the council failed to consider whether the engineering works involved in the creation of the basement constituted a separate activity of substance. 'The council needed to address the nature of the excavation and removal of the ground and soil, and the works of structural support to create the space for the basement.' The decision therefore leaves the principal question open to be determined as a matter of fact and degree on a case by case basis. As such, it opens the possibility to local authorities taking enforcement action against basements excavated without express planning permission which, in their view, involve substantive engineering works not permitted under the GDPO. The prudent developer, wanting to avoid such risk, would therefore have to apply for planning permission or for a certificate of lawfulness as in Eatherley. The local authority must also direct itself to consider whether any engineering works involved in the creating the basement constitute a separate activity of substance taking account of the planning implications of the works. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{7B985165-5C6A-489B-A92E-C010144900EC}https://www.shoosmiths.co.uk/client-resources/legal-updates/habitat-iii-applicability-new-urban-agenda-12147.aspxHabitat III - the applicability of New Urban Agenda Environment analysis: As the Habitat III Conference draws to a close in Quito, Ecuador, what chances are there of its New Urban Agenda (NUA) finding a way into UK and international law? Angus Evers, partner at Shoosmiths, notes limited attention being given to UK involvement in the conference, but sees opportunity for measuring and encouraging the impact of the NUA. What power does the NUA have in real terms? NUA was adopted in Quito, Ecuador, on 20 October 2016 at the conclusion of the UN Conference on Housing and Sustainable Urban Development (known as Habitat III). The UN describes it as an 'inclusive, action-oriented, and concise document intended to guide the next twenty years of sustainable and transformative urban development worldwide'. The NUA is not intended to be legally binding and will only provide guidance - as such it seems unlikely to have any real power. The NUA is accompanied by the Quito Implementation Plan, which is a set of voluntary commitments by various partners (ranging from government bodies to NGOs and businesses) intended to contribute to and reinforce the implementation of the outcomes of the Habitat III conference and the NUA. These commitments are not enforceable, but are made through an online platform to enable partners demonstrating interest in similar commitments to link with each other, so there may at least be some peer pressure on those making commitments to implement them. Could a government face any legal action for failing to live up to the ethos of the NUA? Unless a country's legal system provided for the enforceability of the NUA in domestic law, there would be no means, either in international law or domestic law, of taking legal action against a government for failing to live up to the ethos of the NUA or to implement a commitment made under the Quito Implementation Plan. Could the NUA be used by citizens to challenge planning decision-making? The NUA has no legal force in domestic law in the UK, so it could not be used to challenge a planning decision. It is also unlikely that the NUA could be considered to be a 'material consideration' to be taken into account by planning decision-makers. It probably says something about a limited UK commitment to Habitat III that I have seen almost nothing in the UK press about it and the government has made no announcement about the UK's participation in the conference. To what extent will any deal struck at Quito be hamstrung by national politics? The NUA inevitably represents a compromise between the different countries that negotiated it and thus reflects their national politics. Unlike other UN-backed programmes (COP 21 for instance), can Habitat III offer deliverable and measurable metrics upon which its success can be measured? The Quito Implementation Plan mentioned above provides a mechanism for different types of organisations, both public sector and private sector, to make public commitments. The Habitat III website states that initiatives under the Quito Implementation Plan: should be specific, replicable, action-oriented, funded and innovative must be monitored and subject to reporting on a regular basis should demonstrate the capacity to deliver should be led by partners able to showcase implementation of existing commitments (sufficient level of maturity), and for co-operative international initiatives, they must observe inclusiveness (eg, balanced regional representation) Although the Habitat III website acknowledges that commitments made under the Quito Implementation Plan are not a substitute for government responsibilities and inter-governmentally agreed commitments, the online platform on which the commitments are made does at least seem to provide a means for monitoring progress with their implementation. First published in Lexis Nexis. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 17 Nov 2016 00:00:00 Z<![CDATA[Angus Evers ]]><![CDATA[ Environment analysis: As the Habitat III Conference draws to a close in Quito, Ecuador, what chances are there of its New Urban Agenda (NUA) finding a way into UK and international law? Angus Evers, partner at Shoosmiths, notes limited attention being given to UK involvement in the conference, but sees opportunity for measuring and encouraging the impact of the NUA. What power does the NUA have in real terms? NUA was adopted in Quito, Ecuador, on 20 October 2016 at the conclusion of the UN Conference on Housing and Sustainable Urban Development (known as Habitat III). The UN describes it as an 'inclusive, action-oriented, and concise document intended to guide the next twenty years of sustainable and transformative urban development worldwide'. The NUA is not intended to be legally binding and will only provide guidance - as such it seems unlikely to have any real power. The NUA is accompanied by the Quito Implementation Plan, which is a set of voluntary commitments by various partners (ranging from government bodies to NGOs and businesses) intended to contribute to and reinforce the implementation of the outcomes of the Habitat III conference and the NUA. These commitments are not enforceable, but are made through an online platform to enable partners demonstrating interest in similar commitments to link with each other, so there may at least be some peer pressure on those making commitments to implement them. Could a government face any legal action for failing to live up to the ethos of the NUA? Unless a country's legal system provided for the enforceability of the NUA in domestic law, there would be no means, either in international law or domestic law, of taking legal action against a government for failing to live up to the ethos of the NUA or to implement a commitment made under the Quito Implementation Plan. Could the NUA be used by citizens to challenge planning decision-making? The NUA has no legal force in domestic law in the UK, so it could not be used to challenge a planning decision. It is also unlikely that the NUA could be considered to be a 'material consideration' to be taken into account by planning decision-makers. It probably says something about a limited UK commitment to Habitat III that I have seen almost nothing in the UK press about it and the government has made no announcement about the UK's participation in the conference. To what extent will any deal struck at Quito be hamstrung by national politics? The NUA inevitably represents a compromise between the different countries that negotiated it and thus reflects their national politics. Unlike other UN-backed programmes (COP 21 for instance), can Habitat III offer deliverable and measurable metrics upon which its success can be measured? The Quito Implementation Plan mentioned above provides a mechanism for different types of organisations, both public sector and private sector, to make public commitments. The Habitat III website states that initiatives under the Quito Implementation Plan: should be specific, replicable, action-oriented, funded and innovative must be monitored and subject to reporting on a regular basis should demonstrate the capacity to deliver should be led by partners able to showcase implementation of existing commitments (sufficient level of maturity), and for co-operative international initiatives, they must observe inclusiveness (eg, balanced regional representation) Although the Habitat III website acknowledges that commitments made under the Quito Implementation Plan are not a substitute for government responsibilities and inter-governmentally agreed commitments, the online platform on which the commitments are made does at least seem to provide a means for monitoring progress with their implementation. First published in Lexis Nexis. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>{035C9B93-45AD-47E9-A285-4E60DDB1A8C4}https://www.shoosmiths.co.uk/news/press-releases/shoosmiths-hires-leading-planning-partner-london-11683.aspxShoosmiths hires leading planning partner for growing London practice National law firm Shoosmiths has appointed a new partner, Tim Johnson, to its planning team, based in the firm's rapidly-growing London office. Download hi-res image Tim Johnson Tim, who is recognised as a leader in his field, joins Shoosmiths from Charles Russell Speechlys where he was a partner specialising in planning law, regeneration schemes, compulsory purchase and judicial reviews, acting for developers and landowners and those promoting land with a focus on the house building industry. Having held positions at DAC Beechcroft and Osbourne Clarke, Tim has a wealth of expertise in the development and infrastructure sector with particular experience of large scale complex residential led mixed use developments. Some of Tim's long standing clients include Linden Homes, Persimmon Homes, Grainger and Crest Nicholson. Recent deals that Tim has led on include securing planning permission for 2750 dwellings, two schools, business park, district centre and bypass for Persimmon Homes and Bloor Homes in Towcester, advising Crest Nicholson on numerous developments including the redevelopment of the former DERA site in Longcross (including the reported Court of Appeal case of SPLv Runnymede Borough Council, Crest Nicholson and CGNU) and advising David Wilson Homes on the re-development of vacant land at the racecourse for a residential led development and the redevelopment of the racecourse facilities. Kirsten Hewson, head of Shoosmiths' planning team, commented: 'Tim brings extensive experience on all aspects of planning law and his particular expertise in residential development work, will build significantly on our existing client relationships in this sector. Our planning team has witnessed continuous growth over the last five years, with Tim's appointment further supporting growth in this area.' Tim Johnson added: 'I am looking forward to using my knowledge and experience to contribute to Shoosmiths' highly successful planning team. As well as working with its experts in planning and real estate, the draw to Shoosmiths was definitely its reputation for superb client service, which I strive for with my clients, always.' Shoosmiths' planning team was ranked 11th in the UK by Planning Magazine with recognition in Chambers and Legal 500 as a leading national team. The team works for industry leading clients on significant projects across the UK including Grainger PLC, IKEA, University Hospitals Birmingham NHS Trust, IM Properties, Peel, Ministry of Defence and Historic England. Fri, 12 Aug 2016 00:00:00 +0100<![CDATA[ National law firm Shoosmiths has appointed a new partner, Tim Johnson, to its planning team, based in the firm's rapidly-growing London office. Download hi-res image Tim Johnson Tim, who is recognised as a leader in his field, joins Shoosmiths from Charles Russell Speechlys where he was a partner specialising in planning law, regeneration schemes, compulsory purchase and judicial reviews, acting for developers and landowners and those promoting land with a focus on the house building industry. Having held positions at DAC Beechcroft and Osbourne Clarke, Tim has a wealth of expertise in the development and infrastructure sector with particular experience of large scale complex residential led mixed use developments. Some of Tim's long standing clients include Linden Homes, Persimmon Homes, Grainger and Crest Nicholson. Recent deals that Tim has led on include securing planning permission for 2750 dwellings, two schools, business park, district centre and bypass for Persimmon Homes and Bloor Homes in Towcester, advising Crest Nicholson on numerous developments including the redevelopment of the former DERA site in Longcross (including the reported Court of Appeal case of SPLv Runnymede Borough Council, Crest Nicholson and CGNU) and advising David Wilson Homes on the re-development of vacant land at the racecourse for a residential led development and the redevelopment of the racecourse facilities. Kirsten Hewson, head of Shoosmiths' planning team, commented: 'Tim brings extensive experience on all aspects of planning law and his particular expertise in residential development work, will build significantly on our existing client relationships in this sector. Our planning team has witnessed continuous growth over the last five years, with Tim's appointment further supporting growth in this area.' Tim Johnson added: 'I am looking forward to using my knowledge and experience to contribute to Shoosmiths' highly successful planning team. As well as working with its experts in planning and real estate, the draw to Shoosmiths was definitely its reputation for superb client service, which I strive for with my clients, always.' Shoosmiths' planning team was ranked 11th in the UK by Planning Magazine with recognition in Chambers and Legal 500 as a leading national team. The team works for industry leading clients on significant projects across the UK including Grainger PLC, IKEA, University Hospitals Birmingham NHS Trust, IM Properties, Peel, Ministry of Defence and Historic England. ]]>{F8623B41-7C9A-4A95-AF8B-5A2392DB93F7}https://www.shoosmiths.co.uk/client-resources/legal-updates/the-housing-and-planning-act-2016-11625.aspxThe Housing and Planning Act 2016 Overriding Easements and Other Rights: this article considers the new power contained in section 203 of the Housing and Planning Act 2016. Readers will be aware that the Housing and Planning Act 2016 (the 2016 Act) received royal assent on 12 May 2016. Commencement regulations made on 25 May and 11 July 2016 have brought certain of the Act's provisions into force, however, the majority remain to be enacted. Amongst those provisions which are now in force are sections 203-206 regarding compulsory purchase and, in particular, the power to override easements and other rights (such as rights to light and restrictive covenants). Prior to the coming into force of these provisions on 13 July 2016, local planning authorities (LPAs) and agencies with regeneration powers had statutory powers, which for LPAs were contained in section 237 of the Town and Country Planning Act 1990 (the 1990 Act), to override such rights in order to facilitate the implementation and delivery of development. The effect of sections 203-206 of the 2016 Act is to repeal those powers and to replace them with a new power which broadens the categories of authority (referred to as a 'specified authority') to whom the ability to override easements and other rights is afforded (ie to include statutory undertakers). While the effect of the new section 203 power is similar to that of section 237 (now repealed), there are a handful of substantive, albeit subtle, changes which are worthy of note. Section 203 enables a person to interfere with a relevant right or interest or to breach a restriction as to the user of land when carrying out building or maintenance work (which means the 'erection, construction, carrying out or maintenance of any buildings or work') or when using land which has been vested in or acquired by a specified authority, or appropriated by an LPA for planning purposes. A person would include a successor in title (ie a development partner) to the specified authority or LPA. A number of conditions/limitations are placed on the exercise of the new section 203 power. As before, planning permission must have been obtained for the building or maintenance work/use of the land. However, it is now also a requirement that the specified authority could acquire the land in question compulsorily for the relevant building or maintenance work/the purposes of erecting or constructing any building, or carrying out any works, for the relevant use. It is unclear at this stage precisely how this requirement will be interpreted (case law having previously directed authorities to develop a public interest case in order to support an intention to rely on the use of the overriding powers contained in section 237 of the 1990 Act and other legislative provisions) and it is anticipated that guidance will be required (or failing this, intervention from the courts) to clarify the position. In addition, the development which the new section 203 power is being engaged to deliver must be related to the purposes for which the relevant land has been acquired or appropriated (whether such acquisition or appropriation is recent or historic). This requirement also has its origins in case law, however, section 203 sets the requirement out more formally and effectively codifies it. Transitional provisions are included in section 203 so that land which has already been acquired (whether compulsorily or by negotiation) or appropriated for planning purposes before 13 July 2016 (referred to as 'other qualifying land') can take the benefit of the section (given that the overriding powers that any such acquisition/appropriation was intended to engage are now repealed). Finally, the power to override easements and other rights contained in section 203 is not available in respect of a protected right (ie a right vested in or belonging to a statutory undertaker for the purpose of its statutory undertaking or a right conferred by the electronic communications code on the operator of a code network). Protection from interference is also afforded to rights or interests annexed to land belonging to the National Trust. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. Thu, 28 Jul 2016 00:00:00 +0100<![CDATA[Sam Grange ]]><![CDATA[ Overriding Easements and Other Rights: this article considers the new power contained in section 203 of the Housing and Planning Act 2016. Readers will be aware that the Housing and Planning Act 2016 (the 2016 Act) received royal assent on 12 May 2016. Commencement regulations made on 25 May and 11 July 2016 have brought certain of the Act's provisions into force, however, the majority remain to be enacted. Amongst those provisions which are now in force are sections 203-206 regarding compulsory purchase and, in particular, the power to override easements and other rights (such as rights to light and restrictive covenants). Prior to the coming into force of these provisions on 13 July 2016, local planning authorities (LPAs) and agencies with regeneration powers had statutory powers, which for LPAs were contained in section 237 of the Town and Country Planning Act 1990 (the 1990 Act), to override such rights in order to facilitate the implementation and delivery of development. The effect of sections 203-206 of the 2016 Act is to repeal those powers and to replace them with a new power which broadens the categories of authority (referred to as a 'specified authority') to whom the ability to override easements and other rights is afforded (ie to include statutory undertakers). While the effect of the new section 203 power is similar to that of section 237 (now repealed), there are a handful of substantive, albeit subtle, changes which are worthy of note. Section 203 enables a person to interfere with a relevant right or interest or to breach a restriction as to the user of land when carrying out building or maintenance work (which means the 'erection, construction, carrying out or maintenance of any buildings or work') or when using land which has been vested in or acquired by a specified authority, or appropriated by an LPA for planning purposes. A person would include a successor in title (ie a development partner) to the specified authority or LPA. A number of conditions/limitations are placed on the exercise of the new section 203 power. As before, planning permission must have been obtained for the building or maintenance work/use of the land. However, it is now also a requirement that the specified authority could acquire the land in question compulsorily for the relevant building or maintenance work/the purposes of erecting or constructing any building, or carrying out any works, for the relevant use. It is unclear at this stage precisely how this requirement will be interpreted (case law having previously directed authorities to develop a public interest case in order to support an intention to rely on the use of the overriding powers contained in section 237 of the 1990 Act and other legislative provisions) and it is anticipated that guidance will be required (or failing this, intervention from the courts) to clarify the position. In addition, the development which the new section 203 power is being engaged to deliver must be related to the purposes for which the relevant land has been acquired or appropriated (whether such acquisition or appropriation is recent or historic). This requirement also has its origins in case law, however, section 203 sets the requirement out more formally and effectively codifies it. Transitional provisions are included in section 203 so that land which has already been acquired (whether compulsorily or by negotiation) or appropriated for planning purposes before 13 July 2016 (referred to as 'other qualifying land') can take the benefit of the section (given that the overriding powers that any such acquisition/appropriation was intended to engage are now repealed). Finally, the power to override easements and other rights contained in section 203 is not available in respect of a protected right (ie a right vested in or belonging to a statutory undertaker for the purpose of its statutory undertaking or a right conferred by the electronic communications code on the operator of a code network). Protection from interference is also afforded to rights or interests annexed to land belonging to the National Trust. DisclaimerThis document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. ]]>